Monthly report on Human Rights - March, 2017 21 April 2017
The monthly report on the human rights situation in the Republic of Macedonia for March, 2017 covers topics from the following areas: Special public prosecutor`s office, Discrimination, Hate speech and Hate crimes, the Refugee crises, Social and Economic Rights and Textile workers. The report is available on the following link.
SPECIAL PUBLIC PROSECUTOR`S OFFICE
THE PUBLIC PROSECUTOR INTERFERES WITH SPO’S AUTONOMY AND AUTHORITY
On March 27th, the Public Prosecutor’s Office of the Republic of Macedonia filed a request for protection of legality with the Supreme Court regarding the detention of businessman Sead Kocan, a suspect in the “Trust” case which is under SPO jurisdiction. The Public Prosecutor's Office requested from the Supreme Court to accept the request for the protection of legality, to abolish the decisions of the Primary Court Skopje 1 of March 7th, 2017 and the one by the Appellate Court of March 15, 2017, and to return the case for a retrial. By submitting such a request, the state prosecutor's office disrespects the decision of the Criminal Council of Primary Court Skopje 1, which stated that the appeal does not affect the decision’s execution, i.e. the suspension of the appeal was violated. By taking actions to enforce the decision before it becomes legally effective, the Public Prosecutor's Office states that the Council violated Article 134, paragraph 5 of the Law on Criminal Procedure. Positive action upon such a request would mean deferring the Special Public Prosecutor’s authorization to submit extraordinary legal remedies and the revocation of Mr. Kocan’s detention. The SPO reacted promptly. Public Prosecutor Katica, with a letter to the Supreme Court, withdrew the request. She briefly explained that as a Special Public Prosecutor she is solely competent to deal with matters arising from the content of the unlawful interception of communications in all judicial instances, referring to Article 5, paragraph 3 of the Law on Special Public Prosecutor’s Office, which stipulates that the Public Prosecutor who manages the SPO is authorized to undertake actions and to represent in cases before primary courts, appellate courts, and the Supreme Court of the Republic of Macedonia. Paragraph 4 of Article 5 of the Law further specifies Janeva’s exclusive competence to undertake prosecution actions, which states that the Public Prosecutor who manages the SPO has full competence and authority to independently perform all the investigative and prosecution functions of the Public Prosecutor's Office, including participation in court proceedings and initiation of any court proceedings, including civil and criminal, whichever the public prosecutor deems necessary.
After Supreme Court President Jovo Vangelovski confirmed that he would still act upon the request for protection of the legality for Marko Zvrlevski, SPO requested the exemption of Vangelovski from deciding on the request for termination of the detention of Sead Kocan. SPO doubts his impartiality due to the published conversation between him, when he was President of the Supreme Court in the first term, and former Minister of Transport and Communications Mile Janakieski in relation to the “Global” case.
The Public Prosecutor must stop interfering with the SPO autonomy, and the Supreme Court should deny the Public Prosecutor’s request for protection of legality as inadmissible because it has been filed by an incompetent authority.
DISCRIMINATION ON GROUNDS OF RELIGIOUS CONVICTIONS AND VIOLATION OF THE RIGHT TO A FAIR HEARING
The Helsinki Committee for Human Rights of the Republic of Macedonia was addressed by a client who was denied a Macedonian citizenship application with the explanation that he/she does not fulfill the requirements for obtaining citizenship, i.e. granting him/her citizenship would threaten the security and defense of the Republic of Macedonia.
The case concerns a citizen of the Republic of Serbia, married to a citizen of the Republic of Macedonia, with whom he has two underage children. He has been residing in The Republic of Macedonia for a longer period of time, that is, he meets the legal requirement for being granted citizenship as a foreigner who is married to a citizen of the Republic of Macedonia for at least three years, and legally and continuously residing in the Republic of Macedonia for at least one year before applying for citizenship in accordance with Article 9, paragraph 1 of the Law on Citizenship in the Republic of Macedonia.
The client is a priest in the Orthodox Ohrid Archbishopric, a church involved in a 2013 case, in which Mr. Vraniskovski along with 18 other people, was charged with alleged money laundering through a citizens association that planned the building of a facility for holding meetings with believers. The police action for apprehending the defendants was called “Raskolnik” (“Heretical”), which is equal to prejudice and represents a direct violation of the defendant's presumption of innocence principle. Furthermore, the Republic of Macedonia has been refusing to accept the Orthodox Ohrid Archbishopric as a church or religious group since 2004. That is a violation of Article 9 (Freedom of Religion), Article 11 (Freedom of Assembly and Association) and Article 14 (Prohibition of Discrimination) of the European Convention on Human Rights. The Helsinki Committee represented the Orthodox Ohrid Archbishopric before the European Court of Human Rights in 2006, but a ruling on the case has not been brought yet.
The discretionary right of the Ministry of Interior (MoI) and the Directorate for Security and Counterintelligence (UBK) to declare citizenship applicants in the Republic of Macedonia who are formally eligible for obtaining citizenship as national security threats, without previous explanations and a procedure which would, to some extent, allow those applicants to prove the contrary, poses a problem and a violation of the principle of fairness and the rule of law in a democratic society. Moreover, in this case, taking into consideration the context of discrimination against the members of this, who are stigmatized and publically named “traitors, heretics and criminals”, the client is likely to be separated from the family he has founded in the Republic of Macedonia.
In the domestic legislation, for decisions rejecting citizenship applications, judicial protection is envisaged before the Administrative Court of the Republic of Macedonia. However, the fact that no adversary procedure has been opened in the MoI and the UBK, the Court is unaware of the case’s fact situation. Hence, the Administrative Court’s practice of confirming the decisions for rejecting citizenship applications in the Republic of Macedonia continues.
Given the increased number of rejected applications for citizenship after free assessment without an adversary proceeding before the MOI and UBK, there is an apparent need for changes in this area. Namely, it is necessary to anticipate an adversary procedure before the competent institutions in which parties would be able to challenge the claim of the competent institutions that granting citizenship endangers the security and the defense of the Republic of Macedonia. Although the assessment by the competent institutions of what constitutes a threat to national security would naturally be of great merit, an independent body or court must be competent to respond in cases when using national security as basis for deciding is not reasonably supported with facts or when the interpretation of what represents a national security threat is unjust and arbitrary.
DISCRIMINATION ON GROUND OF LANGUAGE IDENTIFIED IN THE MUNICIPALITY OF GAZI BABA
The Commission for Protection against Discrimination identified discrimination on the basis of language in the field of work and labor relations in the Municipality of Gazi Baba. The case concerns an employee in the Municipality, who has been discriminated against several times by a department manager who forbade the employee to use his mother tongue (Albanian) in everyday, informal communication with his colleagues. After receiving legal counseling by the Helsinki Committee, the discriminated client submitted a complaint to the Commission for Protection against Discrimination. In its opinion, the Commission concluded that the official language in the Municipality of Gazi Baba is the Macedonian language and it should be used in the official communication. However, everyone can use their own mother tongue in informal communication and that this right cannot be restricted and prohibited to any municipal employee. The opinion of the Commission ends with a recommendation to the Municipality of Gazi Baba for removing the violation within 30 days from the receipt of the opinion.
Though this opinion is a positive example, we point out that the Commission for Protection against Discrimination continues the practice of passing opinions which contain technical, formal and essential shortcomings. In its opinion, the Commission stated the following: “It has been established that there are elements of discrimination in one part of the claim”, but it has not been stated whether discrimination has been confirmed. The conclusion that discrimination has been identified and confirmed is at the end of the opinion and in the recommendation which is part of the opinion. Furthermore, the Commission’s opinion does not specify if it is a direct or indirect discrimination. Finally, the opinion confirms that discrimination occurred several times, but it does not specifically determine the existence of repeated and prolonged discrimination which is a more serious form of discrimination in accordance with the Law on Prevention and Protection from Discrimination.
The Helsinki Committee welcomes the positive opinion issued by the Commission for Protection against Discrimination and advises the Commission, in the preparation of future opinions, to ensure that they do not have technical, formal and material shortcomings.
POLITICAL AND SOCIAL CRISIS INCITE HATE SPEECH
As a consequence of the continuation and deepening of the political crisis and significant polarization of the people, the occurrence of hate speech continues with the same intensity as during the previous months. There are still calls for violence, discrimination and intolerance towards ethnic communities in the country, as well as calls for the death of political opponents. Again, hate speech is most widely spread on the Internet, provoked by daily political developments and titles on the Internet media and portals.
In February and March, the Helsinki Committee registered 21 hate speech reports on the www.govornaomraza.mk platform.
As usual, the most common grounds for hate speech are ethnicity, political convictions and sexual orientation as the basis for ridicule and humiliation. There have also been several instances where hate speech transforms into direct threats to the safety of certain public figures.
The Helsinki Committee calls on the Ministry of Interior, especially to the Department of Cyber-crime and Digital Forensics, to closely monitor social networks and to take actions for prevention of hate speech and threats to the safety and security of citizens since they can easily turn into hate crimes.
THE HATE CRIMES TREND CONTINUES
Occurrences of incidents which can be characterized as hate crimes continue to date. During the the month, the Helsinki Committee registered 12 incidents. In half of those, perpetrators and victims are young people and minors of Macedonian and Albanian ethnicity, who attach each other in buses and near bus stops. Additionally, 3 of the incidents involve stoning of political parties’ headquarters in Skopje (2 of the SDSM and 1 of the VMRO-DPMNE political party), and one SDSM activist was attacked in Prilep. An extremely serious incident that could have caused ethnic hatred was the attack with petrol bombs on the Museum of the Albanian Alphabet in Bitola. The perpetrators tried to ignite the building, but failed, and broke the windows instead. Towards the end of the month, MoI reported that the Basic Public Prosecutor’s Office in Bitola filed criminal charges against four persons at the age of 16-17, three of whom are from Bitola and one person is from Demir Hisar, on suspicion that they committed the crime of “Casing general danger” by making 4 petrol bombs and rushed to the Museum with the intent to burn the building. This attack over the Museum is the fifth in the last four years.
The Ministry of Interior should use the map from the Helsinki Committee's portal for mapping “black spots” where hate crimes are usually committed, make more efforts for detecting perpetrators, and take appropriate measures for preventing the occurrence of such incidents in the future.
REFUGEE CRISIS EASES
During the month of March, the number of refugees in transit camps, as well as throughout the Republic of Macedonia, reached the lowest level since the beginning of the refugee crisis. Unlike the beginning of the month, when there were about 50 refugees at the camp in Gevgelija, by the end of the month, the number decreased to only 8 refugees, all of whom came from Iraq. Refugees who were unjustly detained for more than a year at the camp in Gevgelija due to a lack of legal status in the country, demanded they be returned to Greece with an explanation that they could not stand the hopeless situation they were in after they remained stuck in the Republic of Macedonia. Later in the month, a group of refugees who were intercepted by the police on a freight train from Turkey to Skopje arrived at the camp. All persons in the group are from Afghanistan, 6 of whom are minors. The group has been admitted to the camp and provided with residence, which means the number of refugees at the camp rose to 14.
In the transit camp Tabanovce in Kumanovo, the number of refugees has decreased and varies between 30 and 45. The number of refugees at the camp is constantly changing due to frequent arrivals and departures of refugees. Around the camp, there are groups of refugees originating in Algeria, Morocco and Pakistan, who are not allowed to access the camp. Occasionally, refugees who have an urgent need for medical help are allowed a short stay in the camp, after which they have to leave.
During this month, the Ministry of Interior did not register any criminal acts related to smuggling of migrants and illegal migration. From field observations, police found a total of 18 refugees on illegal roads and returned them to the Greek side of the border.
The Helsinki Committee for Human Rights recommends that the state regulate the status of refugees and ensure that their basic human rights and freedoms are fully respected as soon as possible.
SOCIAL AND ECONOMIC RIGHTS
ILLEGAL ELECTRICITY CUT-OFF BY EVN MACEDONIA
The Helsinki Committee for Human Rights of the Republic of Macedonia was addressed by a client whose electricity was cut off due to unsettled debt to EVN Macedonia. The client is a single mother of a young child who has been living without electricity in her home for a long time due to unsettled debt to EVN Macedonia, even though she has not received a court verdict, nor does she have any knowledge of an initiated court procedure.
The practice of EVN Macedonia to cut off electricity to consumers due to unresolved debt and without an effective court verdict, is illegal, although EVN Macedonia acts according to the provisions of the Energy Law as well as the Grid Code for Electricity Distribution. However, the relevant facts relating to unpaid electricity use can be reliably established only through a final court decision by a competent court. Debts arising from delivered, unpaid invoices for monthly electricity use do not constitute grounds for electricity cut-off due to unsettled debt if there is no effective decision issued by a competent court which determines the existence or non-existence of a debt. This is important if we take into account that, according to Article 367 paragraph 1 of the Law on Obligations, the claim for compensation for delivered electricity expires in a year, hence debt becomes obsolete after a year if there are no opened court proceedings.
It is necessary for EVN to respect legal regulations when it comes to cutting off consumers from using electricity on the basis of unsettled debt to EVN. Therefore, it is always necessary to determine with certainty whether the existence of unpaid bills has been brought before the court as a fact, from which it can be reliably established whether there is a debt on the basis of which users are no longer allowed to use electricity.
VIOLATION OF WORKERS’ RIGHTS AND STRIKE OVER UNPAID SALARIES AND CONTRIBUTIONS
March was filled more developments in the textile and shoe industry which were not positive in any way. After receiving information about violations of labor rights in a factory in Kriva Palanka, the Helsinki Committee sent a request for extraordinary inspection to the competent Labor Inspectorate. After the inspection, the inspectorate found a violation of workers' rights in the area of non-payment of salaries and contributions for health, pension and disability insurance for January 2017. After the established violation, the Inspectorate issued an order to the employer and the responsible person to eliminate the violation, i.e. to pay off employees’ salaries and contribution for January 2017 within 8 days from the conducted inspection. Since the employer did not act upon the issued order within the prescribed deadline, the Helsinki Committee submitted a new request to the State Labor Inspectorate PE Kriva Palanka for the continuation of the procedure after the extraordinary inspection and initiation of a misdemeanor procedure. In the response to that request, the State Labor Inspectorate sent a notification stating that they had conducted the control inspection supervision and found non-compliance on part of the employer, who thereby violated Article 109 of the Labor Law. According to this provision of the law, “Salary is paid within a period that may not exceed one month. The payment is issued no later than 15 days after the expiration of the payment period. If the day of payment is a non-working day, the salary is paid no later than the following first working day. The employer is obliged to notify employees in writing prior to the day of payment and for any changes regarding the day of payment.” On the basis of the established fact situation, the competent inspector imposed a fine for the committed misdemeanor with a payment deadline of 8 days, and the employer paid the fine in full amount of the issued misdemeanor payment order the following day.
In the meantime, the employees from this factory did not receive the next salary for February 2017, nor were they paid any of the unpaid salaries and contributions. This is an indication that although employers are being sanctioned, they are not encouraged to fulfill their obligations to workers and pay their salary and contributions. Moreover, employers continue the same practice and do not pay salaries or contributions in the coming months. Due to the great revolt among workers, they went on strike to express their dissatisfaction and to publicly fight for their rights. Despite the holding of a mediation meeting attended by the employer’s representatives, representatives of the Helsinki Committee and the Association of Textile and Leather Workers “Tivko Mnozinstvo” for the purpose of urgent payment of salary contributions and salaries, we were informed by the employers' representatives that the salaries and salary contributions could not be paid to the employees because, at the moment, the factory did not have any finances on its account. For these reasons, the strike continued.
The Helsinki Committee for Human Rights applauds the positive example set by the State Labor Inspectorate PE Kriva Palanka, acting in accordance with the law and its competences. However, we emphasize that the punishment of the employer and the payment of the imposed fine does not change the fact that employees were left without salaries and salary contributions for two consecutive months ‒ January and February 2017. The continued avoidance of obligations arising from laws and employment contracts demonstrated by employers of these industries is more than concerning. In order to overcome this situation, the functioning of the mechanisms for protecting the rights of the state is necessary, as workers from these industries would directly benefit from it and would gain the necessary protection of their rights.