Corner Reports

Monthly Report (November 2010) 10 December 2010

1. PUBLIC DEVELOPMENTS AND VIOLATIONS OF DEMOCRATIC PRINCIPLES

1.1. Freedom of information should not be lynched! Freedom of speech is not for sail! - Campaign for an ombudsman for media. 

1.2. National strategy for poverty and social exclusion reduction 

1.3. Will judiciary manage to protect itself from political pressures?!

2. POLICE AND COURT CASES

2.1. Naum Milososki from Ohrid

2.2. The European Convention in the Macedonian legislation – the case of M.T.

3. VIOLATIONS OF ECONOMIC AND SOCIAL RIGHTS

3.1. Will the Ministry of Health protect the rights of the children with impaired hearing? 

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1. PUBLIC DEVELOPMENTS AND VIOLATIONS OF DEMOCRATIC PRINCIPLES

1.1. Freedom of information should not be lynched! Freedom of speech is not for sail! - Campaign for an ombudsman for media

Macedonian society for twenty years has been going through a very difficult “transition” towards democracy and market economy. This painful indefinite transition has left a deep mark also on the media and the freedom of information and expression. 

A combination of the old problems and new trends with the freedom of expression and information in Macedonia today is manifested with a declining tendency and destructiveness in the field of human rights legislation.

The last one in the series of intrusions in the media by the state happened at the private A1 TV Station when after the events on 25 November the Ministry of Interior before finalising the internal investigation of the police intervention issued a public release offering the citizens legal advises on how to initiate legal proceedings against the TV station. This is an event without precedent in the fragile democratic history of the Republic of Macedonia, which unless condemned could cause unforeseeable consequences for the freedom of media and publicly expressed word. We believe that saying nothing about that public release and the entire police action means taking MOI’s side, the side of direct intimidation and attempt to silence a medium (http://www.moi.gov.mk). For that public release the Minister Gordana Jankulovska is most directly responsible and cannot be amnestied. Her absence from the meeting of the Standing Inquiry Committee at the Assembly additionally demonstrated the impudence of the Minister, but it is also reflection of MOI's powerful position, in regard to which even the Assembly cannot do anything. This case is a test also of the balance between the authorities and the control mechanisms when ruling with the country.  

Hence, all these could be summarised in several most important points concerning the situation with the freedom of the media:

·  Violence against journalists, lack of action by the enforcement authorities and their public lynch;

·  Initiating procedure for slander and insult by politicians against journalists;

·  Failure by the Broadcasting Council to apply the law when it comes to controlling radio and TV operators that rudely violate it;

·  Unclear ownership of the media that prevents identifying many of the actors in this field and taking on the responsibility;

·  Auto-censorship by the journalists, and the reasons are definitely economic as well as the political interests of the media owners; 

·   Different forms of political pressure by the state and by certain parliamentary parties;

·   Strongly expressed and broadly spread racism, xenophobia, sexism and prejudices towards the religious and sexual minorities;

·  Arbitrariness by the public institutions when it comes to access to information i.e. their being closed and with a selective attitude towards the media. 

The hope that every new government in Macedonia will show at least a little bit of shame and self-initiative and will try at least to limit all the above mentioned phenomena, unfortunately slowly but definitely is dying out. The practice has shown that everybody wants to control the media. The remaining possibility is for the citizens, i.e. the civil organisations to unite all the available forces and step by step to fight in order to achieve some kind of visible and not only statistical results. Concrete mechanisms are necessary to ensure the right of the citizens to get and spread information, and this kind of step in the right direction would be an Ombudsman for Media. Certainly, first of all this office’s legal and political functions need to act in compliance with the rule-of-law state, and to have available mechanisms that would  guarantee the right of the citizens to get and spread information. The ombudsman for media should also have the opportunity to mobilise civil support for the journalists who are under pressure for performing their duties conscientiously.  

Furthermore, we believe that apart from the functioning of the self-control mechanisms, which unfortunately within many media are improperly applied, it would be good to develop a broad public debate about the possibility for introducing legislation for the printed media. We believe that the situation would improve significantly if a Media Council or a similar body is formed that would be the new instrument for monitoring the media, parallel to the Broadcasting Council. We encourage the Journalists Association and the Independent Journalists Trade Union to initiate public debates on these issues.

The Helsinki Committee believes that a general campaign needs to be initiated for appointing an Ombudsman for the media! S/He should not represent only a form or some kind of infinite bureaucratic game, but the ombudsman for media should be a solution for the existing problems and to create real conditions for timely control and protection of everything that freedom of information in Macedonia refers to.  

1.2. National strategy for poverty and social exclusion reduction 

In compliance with the envisaged procedures for preparing the Macedonian state and society for the process of Euro integration it is necessary to adopt a number of strategic documents for different areas of social living. Within this framework we also have the obligation for drafting and adopting a National Strategy for Poverty Reduction and Social Exclusion that was adopted in October 2010.

The very strategy states that it was drafted as a document that reflects the intention of the Republic of Macedonia for equalising the level of inclusion and wellbeing of all walks of life. That would also mean finalising the striving that we have been faced with or building a cohesive society in which the fight against poverty and social exclusion will mean existence of unconditionally “equal chances and possibilities for all”.

The main strategic goal for poverty and social exclusion reduction in the Republic of Macedonia is reduction of poverty and social exclusion by using all the available human and material resources; improving the living and working conditions as well as the social conditions for all the citizens; systematic and institutional co-action for the purpose of faster development; higher standards and better quality of living. 

Apart from the presented measures and proposals for each of the defined areas, there is an utter need for building a contemporary concept for dealing with the socially excluded individuals and creating a new social model in which it is the individual who is in the foreground and not the reason for the exclusion such as origin, diagnosis, disability or any other grounds for social exclusion of the citizen. 

At the workshop organised by the Ministry of Labour and Social Policy on continuing with the activities related to the drafting of the 2011 Operational Plan, the representatives of the NGOs were informed that there were no planned funds for the implementation of this strategy measures in 2011. 

The Helsinki Committee follows the procedure for the adoption of the 2011 Operational Plan and it hopes that this Strategy will not remain another unfulfilled wish transferred on paper, only because the adoption of this document is a condition for starting the JIM process in the Republic of Macedonia, which is one of the essential challenges of the country seen through the prism of its sooner Euro-Atlantic integration and participation in the Open Coordination Method. 

The desire to help the poor and the socially excluded citizens cannot be brought down simply to drafting written documents and strategies; we also need financial means that will be provided by the state in order to implement the measures prescribed by the strategy.

1.3. Will judiciary manage to protect itself from political pressures?!

In the past few days the story about the court decision regarding the pre-trial detention measure for Bajrush Sejdiu was rather popular topic among the public, since with a decision by the first instance court his pre-trial detention was prolonged, but the Court of Appeal based on an appeal revoked the detention and replaced it with a softer measure of house arrest with an additional guarantee of 1.4 million Euros.

At first glance one of the many court decisions for pre-trial detention that have had no echo in the public, but this was not the case and only because the Minister of Interior did not like the decision or what is even worse the ruling VMRO-DPMNE party did not like it. In this occasion we would like to remind you that the pre-trial detention measure is only a measure for ensuring the presence of the defendant, and certainly not a punishment and for that reason the cases in which the defendant is in pre-trial detention should be solved urgently, and to reach an effective court decision as soon as possible. 

After the Court of Appeal’s decision about the house arrest was made public, Minister Jankulovska publicly evaluatred the decision as unprincipled that will not discourage, adding that MOI will undertake all the measures under their competence for the process to be completed. 

In compliance with the Macedonian legislation the Ministry of Interior acts based on founded suspicion about a person and it is obligated to provide proper evidences and then to propose instituting criminal charges to the Public Prosecutor's Office and that is when its competence regarding any criminal prosecution process ends.

Furthermore, after the beginning of the investigation and afterwards of the court proceedings it is the court that takes over the competences that in compliance with the Constitution are independent and sovereign, and they decide only based on the Constitution, the law and the international acts, while for everybody else any influence from the position of power is forbidden regardless whether somebody likes it or not, even if it was the Minister and the ruling party. 

Hence, there is no other way to interpret the statement by the Minister except as a direct interference with the independence of judiciary with an attempt to influence the judges and thus to degrade the legal order and to disturb its division of power.  

Unfortunately, this is not the first time for the Ministry of Interior to go beyond its competences. They did the same recently by instructing the citizens to the competent institutions to demand sanctions against the conduct of A1 TV station if they wanted to express their indignation in a democratic manner, thus threatening the independence and freedom of the media as well as the freedom of speech. 

Obviously, the Ministry of Interior should be reminded to the fact that it is part of the state executive authorities and thus part of the state apparatus which is the only competent one for protecting human rights, instead of amnestying itself and demanding accountability from all the other factors in the state. 

Still, what is even of greater concern is that the statements by the Minister and the ruling party might influence the decision for the house arrest to be revoked i.e. to have reinstating the detention measure by the Supreme Court simultaneously with the initiation of the procedure for releasing the Court of Appeal judges from their duties. If it is so it would mean end of the division of power and transforming the judiciary into a puppet for fulfilling the party wishes which is a terrifying threat against human rights and the legal safety of every citizen. 

The Helsinki Committee has continuously pointed out the unacceptability of any kind of attack and interference with the judiciary from a position of power, and this was also confirmed in the latest report by the European Commission on the progress of Macedonia. For these reasons the Committee DEMANDS from the authorities to stop with the attacks and the attempts to influence judiciary in order to ensure respect of the legal order in a democratic society. 

2. POLICE AND COURTS CASES

2.1. Naum Milososki from Ohrid

Mr. Trajkovski's destiny, on which we reported in the previous monthly reports[1] (http://www.mhc.org.mk) was also shared by another citizen from Skopje who on 24 March 2009 was taken into custody by police officers and immediately escorted to the “Idrizovo” Penitentiary without having a valid court verdict properly delivered to him. From the documents provided to the Helsinki Committee we could see that Naum Milososki demanded retrial. The appeal was approved and the Court with the decision registered under K. Pov. Br. 72/09 from 5 March 2009 allowed retrial. 

The Court issued an order on 25 March 2009 and on the same day the individual Naum Milososki was transferred from the Idrizovo Penitentiary to the Skopje Penitentiary-Skopje. On the next day he was released to go home with a handed effective decision based on an appeal for retrial.

The Helsinki Committee sent a letter to all the relevant state institutions. The competent court in Skopje was asked to inform us whether they were familiar with this development and the reasons for taking Naum Milososki into custody and escorting him to the Idrizovo Penitentiary to serve a sentence imprisonment even though the conditions were not fulfilled for him to go to prison[2]; what were the reasons and the legal act based on which he was transferred from Idrizovo to the Skopje Penitentiary in Skopje from where he was released after spending one night there.

Idrizovo Penitentiary was asked to inform us about the reasons for admitting Naum Milososki in their institution since the Court Warrant stated “The convict on … and at the latest until ….. to report at the Skopje Penitentiary, Skopje to serve a sentence imprisonment”, and based on which act he was transferred to the Skopje Penitentiary – Skopje. The Helsinki Committee addressed the Skopje Penitentiary – Skopje with the same question. 

The Sector for Internal Control and Professional Standards was asked to respond to the following three questions:

-  how was it possible for the individual Naum Milososki to be taken into custody on 24 March 2009 without having a court warrant for his arrest;

-  what were the reasons for his detention; and

-  based on which act the individual Naum Milososki was taken to the “Idrizovo” Penitentiary. 

The following institutions informed us about this case: 

1. The competent first instance court in Skopje informed us that a court order was issued by the Court on 25 March 2009, but there was no arrest warrant against the individual Naum Milososki. The Court further down in its letter states that the court order was issued “after it learned that the individual Naum Milososki was already serving sentence imprisonment for other cases”, and probably thought since he was already in why not use the opportunity (our note).

2. Skopje Penitentiary – Skopje only confirmed that on the above mentioned date the individual Naum Milososki was transferred from one penitentiary to another i.e. that they took him in and on the next day released him. 

3.  Idrizovo Penitentiary informed us that the individual Naum Milososki on 24 March 2009 was escorted by the police to their prison in accordance with the court order issued by another competent court. However, the documents and the response they provided show that against the individual Naum Milososki other criminal proceedings were underway before another competent first instance court. The effectively finalised criminal proceedings were suspended with decisions where in one of them from 2004 retrial was approved and in another in 2006 it was returned to the previous state – to an appeal procedure. Furthermore, at the same time (in 2004 and 2006) decisions were adopted to stop the proceedings for serving the sentences imprisonment.  

The abovementioned decisions were faxed to the penitentiary authorities on the day of the arrest. Now the question is whether there was a need for such hastiness and mass by the court, the police and the penitentiary authorities to the disadvantage of the individual Naum Milososki. The individual was definitely not to be blamed and he should not have suffered due to the lack of coordination among the competent institutions. 

In addition, the letter stated that Naum Milososki was kept until the next day when the competent Skopje court issued a court order and a request to the prison for the individual to be transferred to another prison to serve a sentence imprisonment for a crime for which a retrial was allowed!!! 

In this case the fact that there were criminal proceedings against Naum Milososki is not the subject of this controversy. The controversy lies in the act of detaining him and the legal grounds for that, as well as the fact that the individual was kept in prison (Idrizovo) based on no grounds. If the proceedings for serving the sentence imprisonment were ceased, on what grounds the individual was kept in prison over night?!?! 

The Helsinki Committee is astonished with the illegality of the police actions. It seems as if the police know that a court order would be issued before that happens, so just in case they take people into custody.  

The Helsinki Committee is concerned with the information about the “readiness” of the police in these cases, when there are no valid legal grounds for an individual to be detained and to start serving the sentence imprisonment (since there were no court orders), … but still people are detained, probably thinking that they will find something they could go to prison for. This is not the first case in which the police showed amazingly swift and unnecessary cooperation with the public institutions playing with the destinies of the citizens. This looks like the folk saying “bow the head and it stays untouched, raise it a little bit and it’s gone”.

The Helsinki Committee urges the involved public institutions to show more of coordination among them, and at the same time to initiate a procedure for clarifying the dilemma whether there were legal grounds to detain the individual Naum Milososki (evidently unjustly and illegally), and those who rushed in doing so to be punished accordingly. 

2.2. The European Convention in the Macedonian law – the case of M.T.

The Helsinki Committee in the past period was informed about a case in which one can easily draw the conclusion about how norms from the European Convention on Human Rights are transposed into the domestic law or even more in the Macedonian case law.  

Namely, the Basic Court Skopje 1 Skopje at the end of 2009 passed a judgement about a crime "Serious crime against the safety of people and property in traffic” in a procedure that started in 1999 i.e. almost 10 years later. 

The Helsinki Committee’s client is a father of a minor girl that lost her life in the traffic accident in question, who has been going to courts for 10 years trying to get justice. 

Since the right to a trail within reasonable time has not been satisfied in this case the party addressed the Supreme Court of the Republic of Macedonia with an appeal for protection of the right to a trial within reasonable time. This mechanism was introduced in order to help the citizens get compensation for the violation of the right by the courts in the Republic of Macedonia and to avoid the need for the citizens to address the Court in Strasbourg. However, the party’s appeal was denied by the Supreme Court and by the Council of the same court that decided upon the appeal.

The Supreme Court’s rationale for this case is that the applicant who is the party that suffered loss in the criminal procedure is not a party in the trial and does not hold a position of a party that could appeal for the protection of the right to a trial within reasonable time in compliance with the Law on Courts and consequently it was denied. 

It is an indisputable fact that in compliance with the Law on Criminal Procedure the one who suffered loss is not considered a party in the procedure just as it is an indisputable fact that the Law on Courts in its Article 36 Paragraph 1 states that the party that believes that the court violated the right to a trial within reasonable time has a right to appeal for the protection of the right to a trial within reasonable time before the Supreme Court of the Republic of Macedonia.  

Nevertheless, the European Convention on Human Rights in its Article 6 reads that everyone is entitled to a fair and public hearing within a reasonable time … and has a right to submit an application to the European Court of Human Rights if s/he believes to be a victim of violation of his/her rights[3].  

If the goal of the amendments to the Law on Courts and the introduction of the mechanism before the Supreme Court is to incorporate the freedoms and the rights from the European Convention into the domestic legislation than in this case it has not been done because of the narrowing of the range of individuals that its norms cover.  

Unfortunately, what the legislator missed the Supreme Court did not compensated with its practice sticking rigidly to the strict restrictive interpretation of the legislative norms.

The remark is even more necessary since the European Convention on Human Rights is directly applicable in the domestic law and it has greater legal power than the domestic laws enabling any court in the country to simply transfer the spirit and the essence of the Convention in its rulings. 

Still, due to the inflexibility of the domestic law and courts, the citizens are the ones that will lose the most by not getting protection for such an obvious and flagrant violation of their right within their country, but the irony is even bigger since they will get it in Strasbourg. 

The Helsinki Committee expresses its disappointment with this kind of decisions by the Supreme Court and appeals to the courts to directly apply the European Convention on Human Rights in their decision in order to ensure greater protection of the rights of the citizens. Furthermore, the Committee urges the Assembly of the Republic of Macedonia as the legislative power to amend the Law on Courts and to adapt it to the European Convention on Human Rights. 

3. VIOLATIONS OF ECONOMIC AND SOCIAL RIGHTS

3.1. Will the Ministry of Health protect the rights of the children with impaired hearing? 

The Helsinki Committee for Human Rights of the Republic of Macedonia was addressed by the parents of several children with impaired hearing who informed us about the situation they found themselves asking us to help them. The parents told us that a list of priorities was made and that two of these kids were operated on with financial means provided by the ORL Clinic and not the Fund, while the other surgeries were on halt until the Fund transferred money for them.

In the course of last month, the Minister of Health stated that he tasked the Ear, Nose and Throat Clinic to most urgently draft a priority list of surgeries and that he believed that these children had to be given a chance. Money simply had to be provided for them.

As a state that has ratified the Convention on the Rights of the Child, the Republic of Macedonia took on the obligation to provide protection and care necessary for the wellbeing of the children. In compliance with Article 3[4] from the ratified Convention it is envisaged that 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. 

The right to health protection is guaranteed with Articles 23[5] and 24[6] from the Convention that prescribe that taking into consideration the special needs of a child with problems in its development, an assistance shall be provided free of charge whenever it is possible and the state has to make sure that no child will be deprived from the right to the highest level of health and medical care and rehabilitation.

In this specific case one needs to primarily take into consideration the opinion of the experts in this field that: “Cochlear implants could help almost all children that have problems with the hearing before school age and adults who used to have a developed speech and only afterwards completely lost their hearing. With children older than 8 and adults that have never been in contact with sound the cochlear implant could create a sense of sound but not speech recognition. As a result of many years living in complete silence there is loss of the capability in the hearing centres of the brain that create the sound image, and thus permanently disables the understanding. This happens because as the brain gets older it loses its capability in the part that should take on the sounds. That is the reason why it is necessary to have the implantation as soon as possible. “

The Helsinki Committee addressed the Ministry of Health, the Health Insurance Fund of the Republic of Macedonia and the Otorhinolaryngology Clinic in writing with a request to inform us about the reasons why the necessary surgeries has not been performed on these children, yet and when they would be done.  

Having in mind that it is an urgent case we still have no answer by any of the addressed institutions, but the Committee will continue to follow the case and will actively lobby for the protection of the rights of these children.

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[1] Monthly report on the state with the human rights in the Republic of Macedonia, June 2009 

[2] The party was not granted a retrial.

[3] Article 34 from the ECHR 

[4] 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.

[5] Article 23

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.

[6] Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services…

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