A TWO MONTH REPORT ON HUMAN RIGHTS IN THE REPUBLIC OF MACEDONIA July August 2016 CONTENTS GENERAL SITUATION OF HUMAN RIGHTS Competent Authorities Failed in Preventing and Dealing with the Consequences from the Flood DISCRIMINATION The Problem of Dislocation of Roma People from the Settlement below Kale Remains Unsolved DOMESTIC VIOLENCE Judges are Unfamiliar with the Law on Prevention and Protection against Domestic Violence JUDICIARY Election of a Judge for the European Court of Human Rights from the Republic of Macedonia Ineffective Procedure for Election of Candidates for Preliminary Training at the Academy for Judges and Public Prosecutors
GENERAL SITUATION OF HUMAN RIGHTS COMPETENT AUTHORITIES FAILED IN PREVENTING AND DEALING WITH THE CONSEQUENCES FROM THE FLOOD On 08.06.2016, Skopje was hit by a severe storm and heavy rains which caused a great flood that affected and completely destroyed several city areas. In the flood, 22 people have been officially killed so far, 6 people are missing and about a hundred are injured. Reports from the scene and social networks give a number a few times bigger than the official number of victims. This tragic number of lives lost could have been and should have been avoided if competent authorities and bodies for dealing with crisis had fulfilled their legal obligations for prevention and had taken the necessary measures in times of floods. For these reasons, the Helsinki Committee believes that it is necessary to inform the public about the obligations and measures that should have been taken by the competent institutions in order to avoid a large scale disaster. The days after the flood recorded an improper coordination of separate parts of the crisis management system, inappropriate actions taken by competent authorities and bodies, and a total failure of the system in general. Prevention plans and measures have been neglected for years, and the measures of protection and rescue were inappropriate and poorly conducted. Moreover, officials in the Government who are members of the Management Committee yet once again showed more interest in leaving the impression of working on a recovery from the consequences of the flood than on working on the actual recovery. Six days after the flood, there were still families and households with no access to basic living supplies (water and food), while health protection measures and measures for prevention of diseases and epidemics had not yet been taken. The Helsinki Committee believes that there has been a huge failure in taking preventive protection measures as well as in the way of dealing with the disaster that struck Skopje. Authorized state institutions did not take the legally proposed preventive measures. The assessment of the threat by natural disasters is outdated and does not correspond to the actual facts, no warning was given to the citizens to prepare for the storm, the sewers and most of the sewage system were not cleaned and nor were any protective structures built.
The state administrative bodies continually show that not only do they lack the capacity to deal with this crisis, but also act contrary to legal regulations. These actions by state administrative bodies after the event of the flood and the failure to take measures for protection are directly responsible for the casualties from this catastrophic flood. At the moment, the most important thing is to provide assistance and protection to flood victims, but the Committee expects the competent authorities to take the necessary measures to in order to establish the responsibility of competent institutions and persons who contributed to the failure of the system for prevention and protection from floods. DISCRIMINATION THE PROBLEM OF DISLOCATION OF ROMA PEOPLE FROM THE SETTLEMENT BELOW KALE REMAINS UNSOLVED Even one month after the violent eviction and demolition of improvised barracks of the Roma below Kale, the state has no solution for the housing problem for 121 people who are currently living under the open sky close to the Vardar river bank. State institutions do not take any steps for solving this problem and the Inspectorate in Skopje does not allow people to re build their temporary dwellings. The Helsinki Committee for Human Rights visited the field of displaced persons several times and it established that there were 29 families or 121 people, among which 64 children, including 10 infants and three pregnant women living under the open sky on minimal living conditions. As a consequence to that and the warm weather and lack of personal hygiene, many people have skin infections and a range of other health problems. Additionally, some of the persons have no personal documentation which prevents them from exercising their health care and social protection rights. The contacts we have established and meetings we have held with the authorities from the nongovernment organization Ambrela informed us that the institutions are shifting responsibility for solving the problem. Representatives from the City of Skopje claim that the problem the Ministry of Labour and Social Policy s responsibility. The Ministry of Labour and Social Policy transfers the responsibility to the Inter Municipal Center for Social Work, which considers accommodating the persons in the reception center in Chichino Village. This reception center has neither the capacity to accommodate all 29 families nor the adequate living conditions.
Considering the constitutional obligation of the state to provide social protection and social security for citizens in accordance with the principle of social justice and the obligation to provide protection to those citizens who have no means for material and social existence, the Helsinki Committee for Human Rights together with partner organizations of the Roma Education Center AMBRELA, The Center for Development of the Roma Community BAIRSKA SVETLINA Bitola, the Roma Organization of Women from Macedonia DAJA Kumanovo, the non government organization KHAM Delchevo, the Roma Organization for Multicultural Affirmation ROMA SOS Prilep, and ROMANO AVAZI Association for Strengthening and Organizing the Roma Community for Real Changes in Tetovo, require the state to take the following measures to resolve the problem of the dislocated Roma families: 1. The Ministry of Labour and Social Policy should conduct a mapping of the dislocated families immediately. 2. The dislocated families should be urgently accommodated in some of the shelters under the Ministry of Labour and Social Policy which have adequate living conditions or should be temporarily placed in temporary buildings. 3. The dislocated families should be given apartments from the project for the housing of socially vulnerable groups F/P 1674. 4. All dislocated persons should be provided with health insurance and urgent medical care. 5. Dislocated persons who do not have personal documentation should be allowed to acquire one more easily. 6. All families should be awarded a one time financial assistance and financial social assistance. 7. Children at an appropriate age for primary school and high school should be immediately included in the educational process. DOMESTIC VIOLENCE JUDGES ARE UNFAMILIAR WITH THE LAW ON PREVENTION AND PROTECTION AGAINST DOMESTIC VIOLENCE A client requesting legal aid as a victim of physical and psychological domestic violence addressed the Helsinki Committee for Human Rights for help. Namely, the client s parents had been inflicting physical and psychological domestic violence upon her for a long period of time by beating her and insulting her with abusive words on daily basis. The Helsinki Committee for Human Rights drafted a request for an interim measure of protection against domestic violence and submitted it to the competent basic court. In the request, the court was asked to issue all protective measures stated in Art. 35 of the Law on Prevention and Protection against Domestic Violence and to appoint a representative of the
Helsinki Committee for Human Rights of the Republic of Macedonia who would accompany the client at hearings for the adoption of interim measures. After monitoring the court hearings, the Helsinki Committee for Human Rights is concerned about the judges unfamiliarity with the Law on Prevention and Protection against Domestic Violence. Namely, during the main hearing, the trial judge stated that "the Law does not give him the authorization to impose interim measures which will send the perpetrators of domestic violence adequate counseling, nor does he have legal authority to temporarily remove perpetrators of domestic violence from the home. We d like to remind that Article 35 of the Law on Prevention and Protection against Domestic Violence stipulates measures for temporary protection, including removal from the home regardless of ownership (Art. 35, paragraph 4) and compulsory attendance at appropriate counseling (Art. 35, paragraph 8). Also, Article 42 of the same Law stipulates that the courts shall decide in proceedings for interim measures of protection and the provisions of the Law on Litigation Procedure will be applied to those proceedings, unless otherwise stipulated by the Law on Prevention and Protection against Domestic Violence. As can be concluded from the above, courts have the legal authority to impose interim measures for perpetrators of domestic violence to refer them to appropriate counseling or to remove perpetrators of domestic violence from the home regardless of ownership, suggesting to the trial judge s complete unfamiliarity with the legal provisions of the Law on Prevention and Protection Against Domestic Violence. We call upon judges to start applying Law on Prevention and Protection Against Domestic Violence effectively, consistently and correctly, in particular the provisions relating to the imposition of interim measures of protection, as it would provide the best protection and eliminate the immediate and serious life dangers as well as preserve the physical integrity of domestic violence victims and members of their family. JUDICIARY ELECTION OF A JUDGE FOR THE EUROPEAN COURT OF HUMAN RIGHTS FROM THE REPUBLIC OF MACEDONIA
On 02.23.2016, a decision for establishing a Commission for the selection of candidates for a judge at the European Court of Human Rights (ECtHR) from the Republic of Macedonia was adopted. The decision was not published in the Official Gazette and therefore, the holder remained unknown to the public. Based on the decision and pursuant to Article 22 of the European Convention on Human Rights, the Commission for Election of candidates of the Republic of Macedonia issued a Public Notice for the election of three candidates. It remained unclear who and for what reasons decided that the Commission will operate within the jurisdiction of the Ministry of Foreign Affairs instead of within the Ministry of Justice, which has jurisdiction in the field of the Judiciary. Regarding the required conditions to be met by the applicant in the notice, it was obvious that they do not conform to the minimum requirements and features to be met by the future judge. The minimum requirements did not state how many years of experience the candidates should have in the field of human rights and that he/she should be familiar with the work and practice the ECtHR. For comparison, in one of the recent notices, the minimum conditions included a requirement that the candidate should be a regular or an associate university professor or have an experience of at least 8 years in the field of human rights and be a prominent activist in non government organizations in this area. The mandate of the current judge from Macedonia Mirjana Lazarova Trajkovska ends on January 31 st, 2017. The Republic of Macedonia should have submitted a list of three candidates to the Parliamentary Assembly of the Council of Europe by August 26 th, 2016. The election of a judge in Macedonia is scheduled for October 2016. The current judge remains in office until the appointment of a new judge. In the past, there were few cases in several countries in which the proposed candidates were not appropriate for the judicial office, i.e. did not meet the requirements. In Slovakia and Armenia, the Advisory Body of the Committee of Ministers or the Parliamentary Assembly of the Council of Europe refused the lists of nominated candidates because the proceedings were not transparent and fair or candidates were proposed on the basis political lobbying. In Spain and Croatia, the term for the selection of candidates coincided with the functioning of the technical government, after which it was decided that the contest will not be announced until after the national elections and the election of a new government. Despite all legal and substantial deficiencies of the public notice and the election procedure, in the period between May and June 2016, the Government decided to send a list of three candidates for an ECtHR judge. On July 28 th, 2016, several Internet portals reported that the Advisory Panel of Experts for the selection of judges in the Committee of Ministers of the Council of Europe rejected the proposed list. On August 9 th, 2016, the portals reported that the government submitted a new list of candidates which included one of the earlier and two new candidates. During the same month, the Ministry of Foreign Affairs refused to give any information about the procedure that took place in
Strasbourg. We believe that the procedure for election of three candidates from the Republic of Macedonia for a judge at the European Court of Human Rights was not conducted in accordance with the criteria of transparency, accountability, and fairness. Despite the flaws of the formal legal aspect, the whole procedure was conducted during a deep political crisis in the country and during the existence of a technical government. The names of the candidates published in the media included some of the most responsible persons for the indicated situation in the judiciary. Given their influence and familiarity with the political elite, some of them, rather than to be held morally, politically and legally responsible, were the main "favorites" for a representative a Human Rights Judge in the ECtHR. We believe that neither the Commission nor the Government, which is directly responsible for the situation in the judiciary, had the credibility to carry out this procedure. This is especially true because some of the proposed candidates are persons under reasonable suspicion of failure in performing their functions professionally and impartially, i.e. that they were directly influenced by the government which leaves them without the moral and legal integrity required for being nominated for this function. The procedure for election of three candidates for judge of the European Court of Human rights should be frozen, i.e. delayed until a new government which enjoys the trust of citizens and the candidates will be selected by Parliament Members elected during fair and democratic elections. INEFFECTIVE PROCEDURE FOR ELECTION OF CANDIDATES FOR PRELIMINARY TRAINING AT THE ACADEMY FOR JUDGES AND PUBLIC PROSECUTORS On 09.11.2015, The Academy for Judges and Public Prosecutors published the announcement 1 for admission of 30 participants in the initial training at the Academy for Judges and Public Prosecutors. According to the announcement published on 04.07.2016 on the website of the Academy, the public was informed that after the conducted written and oral examination, the Commission for entrance examination established a list of evaluated candidates from the written and oral entrance exams. After the release of the list, 44 complaints were filed with the Commission for the entrance examination, against which 29 appeals were filed with the Managing Board of the Academy. The unsatisfied candidates can initiate an administrative proceeding against the Managing Board s decision before the Administrative Court and the Administrative Court s decision can be appealed to the Supreme 1 The announcement was published in the Official Gazette of the Republic Macedonia No. 195 of November 9 th, 2016
Administrative Court. Given this possibility, 9 candidates initiated proceedings before the Administrative Court after the administrative proceedings against the decisions of the Managing Board of the Academy. 2 Following the decision of the Administrative Court, candidates have the right to appeal to the Supreme Administrative Court. Given the short time to resolve complaints, appeals and lawsuits of dissatisfied candidates for admission to the Academy for Judges and Public Prosecutors, it is obvious that the deadline for completion of the whole procedure was not met. Namely, Article 88 of the Law on the Academy for Judges and Public Prosecutors states that the dissatisfied candidate has the right to appeal to the Commission for entrance examination within 3 days from the publishing of results at the official webpage and the notification board of the Academy. The Commission for entrance examination is obliged to decide upon the complaint within 2 days from the date of receipt of the complaint at the Academy. The candidate has the right to appeal the decision of the Commission for the entrance examination to the Management Board within 8 days of the receipt of the decision. The Management Board shall decide on the appeal within 3 days from the deadline for filing appeals of decisions on the entrance examination. The dissatisfied candidate may initiate an administrative proceeding against the decision before the Administrative Court within 3 days of receipt. The Court decides upon the lawsuit within 5 days. The decision of the Administrative Court may be appealed to the Supreme Administrative Court within three days of receipt of the Administrative Court decision. The Supreme Administrative Court decides on the appeal within 7 days of receipt. Given the fact that after over 10 months, there is no information about the final selection of candidates, it is more than obvious that the whole procedure for accepting candidates for the initial training in the sixth generation of the Academy is not effective. Additionally, on 29.08.2016, the Academy published a new announcement for acceptance of 60 candidates in the initial training candidates for public prosecutors. 3 Given that the procedure in the previous announcement has not been closed yet, the candidates who have applied on that announcement will not be able to apply on the new announcement for candidates for public prosecutors. The Academy must inform the public about the reasons for delays in the procedure for selection of candidates. In the future, the short legal deadline for appeals, complaints and lawsuits stipulated in 2 The full announcement of the Academy for Judges and Public Prosecutors can read the following link: http://www.jpacademy.gov.mk/novosti/9941 3 The published announcement of the Academy for Judges and Public Prosecutors can be found on the following link: http://www.jpacademy.gov.mk/novosti/ a e a a
the Law on the Academy for Judges and Prosecutors must be observed, since its purpose is to ensure the efficiency of the procedure for selecting candidates at the Academy.