CASE OF ILJAZ v. NORTH MACEDONIA

SECOND SECTION

CASE OF ILJAZ v. NORTH MACEDONIA

(Application no. 53040/19)

JUDGMENT
 

STRASBOURG

20 February 2024

This judgment is final but it may be subject to editorial revision.

In the case of Iljaz v. North Macedonia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Lorraine Schembri Orland, President,
 Jovan Ilievski,
 Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 53040/19) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 October 2019 by a Macedonian/citizen of North Macedonia, Mr Robert Iljaz, who was born in 1989 and lives in Skopje (“the applicant”), and who was represented by Ms J. Ristikj, a lawyer practising in Skopje;

the decision to give notice of the application to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova;

the parties’ observations;

Having deliberated in private on 30 January 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged failure by the domestic authorities to investigate allegations of physical assault and threats made to the applicant by a private individual.

2.  According to the applicant, on the morning of 29 October 2017, his neighbour S.F. punched him in the face, hit him with a wooden bat on the head and body and threatened him verbally. The applicant’s child was present and witnessed the assault. A medical note issued that same morning stated, inter alia, that the applicant had been “injured in a physical assault by people of known identity, [having been] hit with a bat”, that he had required stitches and that he had neither lost consciousness nor vomited. Another medical note issued on the same day by a radiologist indicated no signs of “traumatic changes” to the skull.

3.  The applicant complained to the police that S.F. had prevented him from voting, namely that he had warned him not to vote for a certain candidate or to transport voters, had slapped him and punched him in the face and had hit him on the head with a bat. The police undertook an on-site inspection, took photographs, searched S.F.’s car and took statements from several people. The applicant’s wife stated that a group of people had threatened her husband and that one of them had hit him on the head with a bat. The applicant’s mother and S.F. stated that the applicant had hit his head on a fence.

4.  On the evening of the same day, the applicant stated, before a public prosecutor, that S.F. had slapped him in the face and that he (the applicant) had slipped, fallen on some stairs (степеници), and hit his head. Subsequently, the prosecutor also heard the applicant’s wife and S.F., both of whom stated that the applicant had fallen into a fence and hit his head. On 21 March 2018 the public prosecutor dismissed the criminal complaint against S.F. for lack of evidence, basing her finding on the later statements of the applicant, his wife and S.F., as well as on the fact that the police had not found any instruments of crime in S.F.’s car. The prosecutor looked at the photographs and the medical documents and found that the applicant had an “open wound to the head”.

5.  In July 2018 the applicant lodged a fresh criminal complaint against S.F., for preventing him from exercising his right to vote, violence, and influencing witnesses. He submitted that in February and March 2018, S.F. had threatened him into changing his initial statement. On 5 October 2018 another public prosecutor heard the applicant, who stated that on the day of the incident, S.F. had told him that “he [the applicant] would have a problem with him if he went to vote” and that he had hit him with his hands and with a baseball bat, after which the applicant had fallen to the ground. He then stated that S.F. had not threatened him at all, although subsequently, when asked by his lawyer, he stated that S.F. had told him that he would not be able to “work outside on the street” and that he would “need to open a company”. The applicant also stated that, on the evening of the incident, five of S.F.’s relatives had come to his house, two of whom had threatened him into changing his initial statement. The public prosecutor reviewed the case file (see paragraph 4 above) and dismissed the fresh complaint, finding, in respect of the alleged complaint relating to his right to vote, that there was no new relevant evidence emanating from the applicant’s statement of 5 October 2018; she further found that no elements of the offences of violence and influencing witnesses had been made out. The higher public prosecutor confirmed that finding, referring to the applicant’s statement of 5 October 2018 according to which there had been either no threats or “no serious threats” to his life or body.

6.  The applicant complained before the Court, under Articles 3 and 13 of the Convention, that the domestic authorities had not conducted an effective investigation into the alleged assault by S.F.

THE COURT’S ASSESSMENT

7.  The Government argued that the applicant’s alleged ill-treatment did not attain the threshold of severity such as to attract the application of Article 3. The Court observes that the applicant suffered an injury to the head, a vital part of the body, which was described by the public prosecutor as an “open wound”, and which required stitches. Furthermore, it has not been disputed that the incident took place in the presence of the applicant’s child, which could have aggravated feelings of humiliation and inferiority that might have been aroused in the applicant. He has thus made an arguable claim that he was a victim of ill-treatment attaining the minimum level of severity under Article 3 (compare Hovhannisyan v. Armenia, no. 18419/13, § 54, 19 July 2018, in which numerous bruises on the applicant’s hands, alongside serious humiliation, attained the threshold of severity under Article 3, or Pulfer v. Albania, no. 31959/13, § 75, 20 November 2018, where strangulation marks around the applicant’s neck, haematomata on the head, and feelings of insecurity, anguish and stress sufficed to attract the application of Article 3).

8.  The Government further argued that the applicant had not exhausted domestic remedies as he could have lodged a private criminal complaint for bodily injury, a civil compensation claim under sections 9 and 189 of the Obligations Act or a request for judicial review of lawfulness under section 290 of the Criminal Proceedings Act. The Court reiterates that the State cannot discharge itself from its procedural obligation under Article 3 by shifting the responsibility for the institution and conduct of criminal investigative procedures onto the injured party (see, mutatis mutandis, Selami and Others v. the former Yugoslav Republic of Macedonia, no. 78241/13, § 87, 1 March 2018). The applicant, on two occasions, brought his grievances sufficiently to the attention of the domestic authorities by lodging a criminal complaint and he should not be required to have lodged a third, private criminal complaint for bodily injury. Furthermore, where an individual claims on arguable grounds to have suffered acts contrary to Article 3, that Article requires the national authorities to conduct an effective official investigation to establish the facts of the case and to identify and punish those responsible (see, for example, S.Z. v. Bulgaria, no. 29263/12, § 44, 3 March 2015). A compensation claim would not have sufficed, given that the applicant complained of intentional ill-treatment (contrast, in the context of Article 2, Koceski v. the former Yugoslav Republic of Macedonia (dec.), no. 41107/07, § 25, 22 October 2013, where there was no allegation of intentional infliction of death or a risk of death). Lastly, the Government are estopped from relying on the ground that the applicant should have lodged a request for judicial review of lawfulness, as it was not raised in their initial non-exhaustion plea (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 52-54, 15 December 2016).

9.  The Court therefore dismisses the Government’s objection of non‑exhaustion of domestic remedies. The complaint is furthermore not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

10.  The Court has summarised the general principles concerning the procedural obligation to conduct an effective investigation into arguable allegations of ill-treatment in Bouyid v. Belgium ([GC], no. 23380/09, §§ 116-23, ECHR 2015) and X and Y v. North Macedonia (no. 173/17, § 50, 5 November 2020). Such procedural requirements are similar whether the treatment contrary to the Convention has been inflicted through the involvement of State agents or by private individuals (see Sabalić v. Croatia, no. 50231/13, § 96, 14 January 2021).

11.  It is true, as argued by the Government, that the police carried out a prompt preliminary inquiry into the incident; they conducted an on-site inspection, collected statements from the people present, searched S.F.’s car and took photographs. However, the public prosecutor to whom the initial criminal complaint was referred dismissed it after the applicant and his wife changed their statements, notwithstanding the sudden nature of the change, which could certainly have raised a suspicion, and the discrepancy between those statements as to whether the applicant had fallen on stairs or into a fence. Moreover, despite acknowledging the injury to the applicant’s head, the prosecutor did not attempt to establish its cause, for example by commissioning an expert medical report or interviewing the doctor who had drawn up the medical note which mentioned the injury to the applicant’s head (see paragraph 3 above). In the subsequent proceedings, the prosecutor only reheard the applicant but, without taking any fresh procedural steps, she found that the applicant’s fresh statement contained no new evidence. The national authorities therefore did not submit the applicant’s case to the careful scrutiny required by Article 3 of the Convention (compare also Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § 91, 23 July 2015).

12.  There has accordingly been a violation of the procedural aspect of Article 3 of the Convention.

13.  Having regard to the grounds on which it has found a violation of the procedural aspect of Article 3, the Court declares the complaint under this head admissible and finds that no separate issue arises under Article 13 of the Convention (see Andonovski, cited above, § 107, with further references).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicant claimed 9,000 euros (EUR) in respect of non-pecuniary damage and EUR 8,243 in respect of costs and expenses incurred before the Court.

15.  The Government contested the claims as excessive.

16.  Ruling on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

17.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,220 in respect of costs and expenses incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,220 (one thousand two hundred and twenty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 20 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Lorraine Schembri Orland
 Deputy Registrar President