Both the Public Prosecution Office and the government are criminally liable for the floods
Утврдување на нечија кривична одговорност за последиците од поплавите во Скопје е можно само ако Јавното обвинителство разгледа конкретна кривична пријава. Засега таква нема, но тоа не значи дека ЈО не може самото да се посомнева. Но, за жал, тоа не се посомневало и нема да постапува за „поплавите и последиците зашто тие се елементарна непогода“ Експертите пак поделени – едни дека тоа е работа на ЈО, но за други, само откако Владата претходно ќе утврди пропусти и одговорности
Holding somebody criminally liable for the consequences from the floods in Skopje is a possibility only if the Public Prosecution Office acts upon a criminal charge. There hasn’t been any so far, but this doesn’t mean that the PPO itself cannot have suspicion. Unfortunately, the PPO hasn’t suspected yet and it won’t act upon the “floods and the consequences because they are natural disaster”. On the other hand, the experts are divided – some say that PPO’s job is to act, whereas others says that the PPO is supposed to act only if the government finds that somebody has done mistakes or has been liable
Author: Teofil Blazhevski
The Public Prosecution Office believes that it has no grounds for holding somebody liable for what happened in Skopje with the floods – a position that divided the experts we consulted with. PPO’s position is stated in the answer we got after we asked them a question, and then we consulted the legal experts.
On 6 August 2016, Skopje was struck by a natural disaster – flood, caused by torrential rains which resulted with 22 casualties, one person is still missing, tens of injured and immense material damage: destroyed homes, infrastructure, vehicles etc. in areas inhabited by approximately 20 thousand people.
Since then, we have witnessed activities for fixing the consequences, but also usage of this this tragedy for political purpose, the ruling party VMRO-DPMNE and its president Nikola Gruevski above all. The government denies every possibility for being liable, whereas the opposition, the non-governmental sector and the experts demand criminal liability.
THIS FIELD OF EXPERTISE IS PRECISELY REGULATED BY THE CRIMINAL CODE
This field of expertise is part of the criminal legislature in this country, and it is clearly determined in one separate chapter of the Criminal Code titled Offenses against general security of people and property. This chapter consists of eight Articles which clearly state that preventing, i.e. not preventing flood that puts people’s lives and property into jeopardy, is an offense.
This is also stated in Article 288 in the first two Paragraphs:
(1) One who will cause significant danger upon people’s life or body or upon huge scale property with blaze, flood, explosion, poison or toxic gas, ionizing radiation or another resource, shall be imprisoned from six months to five years.
(2) The sentence from Paragraph 1 refers to an official or accountable person who will not set appropriate devices for protection from blaze, explosion, floods, poisons, toxic gases or ionizing radiation or does not maintain these devices or in a case of usage does not put them into action or does not comply with the regulations or technical rules for measures of protection and by doing so he puts people’s life or body or huge scale property in danger…
Bigger dangers are considered as severe offense and the sentences are even higher. Here’s what’s stated in the Article 292 from the Criminal Code:
(1) In a case of perpetrating offense from the Article 288 Paragraphs 1, 2 and 3, Article 289, Paragraphs 1 and 2 and Article 291 Paragraph 1 after which a person suffers severe physical injury or serious property damage, the perpetrator shall be imprisoned from one to ten years.
(2) In a case of perpetrating offense from the Article 288 Paragraphs 1, 2 and 3, Article 289, Paragraphs 1 and 2 and Article 291 Paragraph 1 after which a one or more persons die, the perpetrator shall be imprisoned for at least three years…
The prevention is regulated, i.e. idleness is a subject to sentence as well. Article 294:
(1) One who with prompt report to a competent body or in other manner will not take measures for stopping blaze, flood, explosion, traffic accident or other danger upon people’s life or body or property with significant size, albeit he could’ve done the aforementioned without putting himself or other persons to risk, shall be fined or imprisoned up to one year.
(2) One who will dissuade or in other manner will hamper other person to take measures for stopping blaze, explosion, traffic accident or other danger upon people’s life or body or property with significant size, shall be imprisoned from three months to three years.
Having all of this in mind, and knowing the dreadful consequences from the flood, we asked the Public Prosecution Office whether they have initiated or plan to initiate an investigation procedure for determining or dismissing suspicion for possible liable persons or entire institutions. However, for the PPO, there is no space for a procedure, unless there are suspicions:
The flood, as a natural disaster and the consequences from it, cannot be a subject of a criminal and juridical intervention by the Public Prosecution Office.
If there are suspicions for perpetrated offenses or suspicions that an offense has been perpetrated to another subject with any other action that had effect on the consequences from the flood, the Public Prosecution Office will act in accordance with its authority.
This answer doesn’t clearly show whether the PPO will only determine or will be waiting for somebody to point out to the suspicions. According to the law, the PPO is the body in charge in the investigation and it cannot wait for the Ministry of Interior or somebody else to submit a criminal charge. Such authorization is given to the PPO both by the Law on Criminal Procedure and the Law on Public Prosecution.
AT LEAST THREE ISSUES TO RESOLVE
Dragan Malinovski, legal expert, believes that with this answer, the PPO hedges itself from liability for the flood.
It is true that surfeit rains fell in a very short period, but it is unacceptable to say that the severe consequences we faced are fate and God’s will. I believe that the PPO has several issues to resolve: First, what was the reason for the water from the mount (Skopska Crna Gora) to rush uncontrollably towards the ring road and the nearby villages. Has anyone had the obligation to forecast this as a potential danger and to suggest appropriate protection system? That’s why we have institutions. Second, whether a possibility for such danger had been foreseen during the construction of the ring road, i.e. whether the project was in accordance with the norms for construction of such road? And third, why the National Hydrometeorological Service did not warn the public on time, especially the bodies for dealing with natural disasters, about the danger from such storm? What’s more, this is one of the basic competences of the National Hydrometeorological Service.
So, it would be really unserious not to solve all the dilemmas related to the liability for the severe consequences caused to the life and property of the citizens – says Malinovski.
Aleksandar Georgiev, lawyer, legal expert, and editor in chief of the Pravdiko website shares the same view, but he justifies PPO’s position regarding the flood and the consequences from it:
I believe that the PPO is right when saying that the flood as a natural disaster and the consequences from it cannot be a subject of a criminally-legal intervention. What needs to be done first is to reexamine the work of the competent institutions prior and during the flood, whether they had been acting in accordance with the appropriate protocols and competences, which would lead to possible mistakes in their work, and if any, they would be basic presumption for further determination of a specific criminal liability.
This means that if certain mistakes in cause-consequence relation with the damage and casualties are found, then it’s PPO’s duty to initiate appropriate criminal procedures for laying down criminal liability.
When asked whether the PPO has to reexamine the work of the institutions, Georgiev although he agrees that there are competences for that, he believes that the country must be responsible for the control, i.e. the government first, and then the Parliament.
It is a matter of state institutions under the government’s wing above all. Therefore, the country, i.e. the government is the one that should control the work of those institutions, and the Parliament can form a committee for examination of the circumstances. If mistakes are found, they could be the grounds for PPO’s suspicions that would lead to an investigation, says Georgiev, while reminding that the actions in question become obsolete very slowly, and he adds that it is possible for some other government to examine the circumstances.
THE LAWS SPECIFY EXAMINATION OF LIABILITY
Truthmeter has analyzed the segments from the entire system for protection from natural and other disasters, including the basic laws and bylaws that manage this field of expertise, as well as the work of the accountable institutions, and it is completely clear that there is a room for holding liability for non-acting, which could lead to prevention of severe consequences. Here, above all, is a matter of prevention in terms of determining the crisis area and risks, then construction and maintenance of watercourses and flood control channels, construction and maintenance of sewage systems, early warning and notifying about the storm, all the way to the questions whether all the subjects that were supposed to do all of the aforementioned had had made plans for acting in a crisis situation and had compulsory material reserves.
The Helsinki Committee for Human Rights of the Republic of the Macedonia shares similar opinion in their analysis on the occurrences and liability published on August 12. The analysis specifically points out to the institutions that have failed – the government, Council of the City of Skopje, Protection and Rescue Directorate, National Hydrometeorological Service etc. Also, the analysis calls the PPO to precisely lay down liability in accordance with the Articles 292 and 294 from the Criminal Code. The director, Uranija Pirovska, told us that her position is completely clear and stated on August 12 in the analysis, and also that they stick to their demand for holding the mentioned institutions liable.
But, if the PPO still claims that it is a matter of a natural disaster and therefore they do not intend to act, the Helsinki Committee will submit criminal charges against everyone for which it is believed that is liable in terms of preventing the consequences from the floods – says Pirovska.
It is not indispensable to lay down liability because of the 22 casualties and the immense damages worth tens of millions of euros. It is indispensable because of future prevention of casualties and damages caused by such or similar events.
- PPO of RM – Law on Public Prosecution
- PPO of RM – Criminal Code of RM – cleaned text from 2013
- PRD – Law on Protection and Rescue
- PRD – Provision for Evacuation
- PRD – Provision for material reserves
- Truthmeter – Counter spin
- Truthmeter – Statement
- Helsinki Committee for Human Rights of the Republic of Macedonia – Analysis