Page:SECOND ANNUAL REPORT 2001 – 2002.pdf/28



In this case, the applicant alleged that, on 1 May 2001, he was ill-treated by an UNMIK Police Officer while in custody in Vitija/Vitina Police Station, in contravention of his rights under Article 3 of the European Convention on Human Rights. In their report on the internal investigation of the allegations, the UNMIK Police themselves concluded that an UNMIK Police Officer used excessive force against the applicant on 1 May 2001 in Vitija/Vitina Police Station. The Ombudsperson therefore found a violation of the right of the applicant to be free from ill-treatment guaranteed under Article 3 of the European Convention on Human Rights.

The Ombudsperson also found a violation of the applicant's right to an effective remedy under Article 13 of the European Convention on Human Rights. The Ombudsperson stressed that an effective remedy for violations of the prohibition against ill-treatment calls for: 1) an investigation into allegations of ill-treatment that is capable of leading to the identification and punishment of those responsible; 2) the prosecution under the criminal law of those responsible; 3) effective access of the victim to any criminal investigative proceedings against the agent who has ill-treated him; and 4) availability of proceedings through which the victim may be able to obtain compensation where appropriate.

The Ombudsperson also reiterated his serious and ongoing concern about the wide scope and continuing applicability of UNMIK Regulation 2000/47 granting immunity to UNMIK and its personnel in Kosovo (cf. Special Report No. 1) and emphasised that the United Nations dual policy of anonymity of its international police officers and the refusal even to identify the country from which a police officer abusing rights comes creates a fertile environment for `virtual impunity' to flourish.

The Ombudsperson recommended that the Special Representative of the Secretary General of the United Nations, no later than 12 April 2002, ensure that criminal proceedings were begun against the UNMIK Police Officer who had used excessive force against Mr. Maliqi, wherever jurisdiction lay, provide Mr. Maliqi with the identity and nationality of the UNMIK Police Officer who had used excessive force against him, provide Mr. Maliqi with full information about the means and mechanisms through which he could raise a claim for compensation and/or damages against the responsible Police Officer and/or against UNMIK and promulgate a Regulation or issue publicly another appropriate legal act to ensure that any individual suffering a violation of human rights or an abuse of authority by a person acting in an official capacity in Kosovo would be provided with the name, nationality and all other pertinent information about that person and will have available, also in Kosovo, an effective remedy in the sense of Article 13 of the European Convention on Human Rights.

In a letter dated 19 March 2002, the SRSG indicated that he had taken the following actions: 
 * brought the case to the attention of the UNMIK Police Commissioner, requesting the full cooperation of the UNMIK Police to ensure that appropriate legal action could be taken to address any criminal acts that might have been committed
 * requested the assistance of the DSRSG for Police and Justice in forwarding the case to the international public prosecutor for his attention
 * forwarded the case to the UNMIK Claims Review Board for their determination as to whether the applicant should be awarded compensation

In a letter dated 29 April 2002, the DSRSG indicated that he had forwarded the case to an international prosecutor in Gjilan/Gnjilane and would inform the Ombudsperson of further developments at the conclusion of the investigation.