SECOND SECTION
DECISION
Application no. 31347/20
M.C.G. and Others
against North Macedonia
The European Court of Human Rights (Second Section), sitting on 5 September 2023 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. 31347/20) 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 16 July 2020 by the applicants listed in the appended table (“the applicants”);
the decision to give notice to the Government of the Republic of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, of the complaint that the domestic authorities did not investigate the applicants’ complaint of domestic violence and to declare the remainder of the application inadmissible;
the decision to grant the applicants anonymity, in accordance with Rule 47 § 4 of the Rules of Court;
the decision of the President of the Section to grant leave to the first applicant, a lawyer practising in the respondent State, to represent the applicants in the proceedings before the Court (Rule 36 § 4 (a));
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged failure of the domestic authorities to investigate the applicants’ complaint of domestic violence.
2. The first applicant is the mother of the second and third applicants. The first applicant and O.C., the father of the second and third applicants, divorced in 2019.
3. In January 2020 the applicants lodged a complaint of domestic violence with the Ministry of the Interior, submitting that on 10 July 2019 O.C. had verbally attacked the third applicant, as a result of which she had suffered from emotional pain and fear, and that on 29 December 2019 O.C. had verbally and physically attacked all three applicants, causing them bodily injuries. It was further stated in the complaint that an indictment against O.C. for domestic violence had been filed previously in respect of another alleged incident, but that the first applicant had withdrawn her complaint in regard of that incident, as O.C. had promised proper conduct in future.
4. In support of their complaint in respect of the alleged incident of 10 July 2019, the applicants submitted a medical certificate (медицинска потврда) issued on the same day by a general practitioner, who noted that the third applicant had been visibly upset as a result of a verbal attack by her father, that she had been given medication and that she had been instructed to see a psychiatrist. In respect of the alleged incident of 29 December 2019, the applicants submitted a handwritten note issued on the same day by Gj.G., a general practitioner of S. hospital, who noted that the applicants had complained of physical and psychological ill-treatment. The note further stated that the first applicant had been punched with a fist (тупаница) in her face and that she suffered from swelling, pain, abrasions, pulled hair, punches in the left and right arms, verbal attacks and psychological ill-treatment. The second and third applicants had complained of pulled hair, being grabbed by the hand or arm (стегање за раце), abrasions and psychological ill‑treatment. The note did not specify what the alleged psychological ill‑treatment had consisted of. Lastly, it stated that the applicants had been attacked by O.C.
5. The public prosecutor, to whom the applicants’ complaint was apparently transferred by the Ministry, commissioned an expert report from an orthopaedist (G.A.) concerning the bodily injuries which the applicants had allegedly sustained in the second incident. The report stated the following in respect of each applicant separately:
“Noted (нотирано): physical and psychological ill-treatment. No bodily injuries are noticed.”
6. The public prosecutor heard Gj.G., who stated that in his recollection the applicants had not had any visible injuries and that in the note (see paragraph 4 above), he had entered “an anamnesis of the patients examined”.
7. In the light of all the above-mentioned evidence (see paragraphs 3-6 above), the public prosecutor found no grounds to consider that O.C. had committed the imputed offence, notwithstanding that the relations between the first applicant and O.C. were clearly strained, as both had repeatedly reported each other to the police.
8. In an appeal to the higher public prosecutor, the applicants argued, among other things, that the events complained of had been part of long-term physical and psychological violence. They further submitted a psychiatrist’s expert report concerning the event of 29 December 2019 which had been prepared on the basis of Gj.G.’s note after the prosecutor had rejected their complaint (see paragraph 4 above). The report found that the applicants had suffered from physical and emotional pain and fear.
9. The higher public prosecutor dismissed the appeal, giving no evidential value to the psychiatrist’s expert report submitted by the applicants, as it had been based on Gj.G.’s note, which, as he himself had stated, merely reiterated the applicants’ statements.
10. In their observations, the parties raised arguments and submitted evidence related to other sets of proceedings, including previous proceedings concerning charges against O.C. for alleged domestic violence and his contact rights with the children.
11. The applicants complained under Article 3 of the Convention that the authorities had not thoroughly investigated their complaint of domestic violence.
THE COURT’S ASSESSMENT
12. The Court does not find it necessary to examine an objection by the Government of non-exhaustion of domestic remedies, since the application is in any event inadmissible for the following reasons.
13. The general principles concerning the States’ procedural obligation to investigate cases of alleged domestic violence are summarised in, for example, Tunikova and Others v. Russia (nos. 55974/16 and 3 others, §§ 73, 78 and 114-15, 14 December 2021). The Court reiterates that special diligence is required in dealing with domestic violence cases, the specific nature of which, as recognised in the Preamble to the Istanbul Convention, must be taken into account in the context of domestic proceedings (see Buturugă v. Romania, no. 56867/15, § 67, 11 February 2020).
14. In determining whether, in the present case, the applicants raised an arguable claim of ill-treatment attaining the threshold of Article 3, triggering the State’s (procedural) obligation to conduct an effective official investigation, the Court observes that the applicants’ complaint concerned two incidents, the alleged verbal attack on the third applicant on 10 July 2019 and the alleged physical and verbal attack on all the applicants on 29 December 2019. It is to be noted that the criminal complaint was very brief (see paragraph 3 above) and did not include a detailed description of concrete acts of the alleged physical and verbal violence (see, for example, Yıldırım v. Turkey (dec.), no. 33396/02, 30 August 2007; contrast Valiulienė v. Lithuania, no. 33234/07, §§ 9 and 80, 26 March 2013, and M. and M. v. Croatia, no. 10161/13, §§ 133-34, ECHR 2015 (extracts)) or of the circumstances in which they had allegedly occurred.
15. Concerning the alleged incident of 10 July 2019, the relevant complaint was brought to the attention of the domestic authorities only in January 2020, or more than five months after it had allegedly taken place. The complaint was supported solely by the general practitioner’s certificate, which was brief and did not provide any details as to which specific actions constituted the verbal attack by O.C. or its effects on the third applicant, apart from her being upset. There is no indication that the third applicant subsequently saw a psychiatrist, as instructed by the general practitioner, which could have potentially helped elucidate the nature and effects of the alleged attack. The applicants did not submit, either in the domestic proceedings or before the Court, any other evidence in respect of the alleged incident, such as, for example, witness statements, nor did they argue that it had been impossible to propose such evidence. The applicants’ appeal against the first-instance decision dismissing the criminal complaint and the expert report submitted with that appeal (see paragraph 8 above) did not refer at all to the alleged incident of 10 July 2019.
16. As to the alleged incident of 29 December 2019, the applicants’ complaint was supported solely by Gj.G.’s handwritten note (see paragraph 4 above). In the absence of any description in the complaint of the alleged abuse, Gj.G.’s note provided the only indication of the type and nature of the alleged attack by O.C. The public prosecutor heard oral evidence from Gj.G., who stated that the note only reiterated the applicants’ account of the event. In the absence of any supporting evidence, the Court cannot accept the allegation by the applicants that Gj.G. gave that statement under threat. While the hospital records mentioned “physical and psychological ill-treatment”, they contained no details as to their type or nature (see paragraph 5 above). Furthermore, the records clearly indicated that the applicants had no physical injuries. The subsequent expert reports (see paragraphs 5 and 8 above) were prepared much later in the course of the proceedings before the public prosecutor and only on the basis of the hospital records and Gj.G.’s note. No other evidence in respect of the alleged incidents was submitted in support of the applicants’ complaint.
17. Lastly, from the limited material available to the Court, it cannot be concluded that there was an arguable claim that the applicants suffered from a sufficiently serious fear of further assaults or anxiety amounting to inhuman treatment (see, conversely, Munteanu v. the Republic of Moldova, no. 34168/11, §§ 38 and 65, 26 May 2020).
18. To conclude, the Court finds that the domestic authorities took a number of steps to verify the applicants’ allegations. The public prosecutor notably commissioned an expert report from an orthopaedist and heard Gj.G., who had examined the applicants on the day of the alleged incident of 29 December 2019 and had confirmed that despite their description of the incident, they had not had any visible injuries (see paragraphs 5 and 6 above). On the basis of this evidence, the prosecution authorities had considered that the veracity of the applicants’ allegations could not be confirmed (compare also Ghișoiu v. Romania (dec.), no. 40228/20, § 61, 29 November 2022).
19. In these circumstances, the Court considers that, from the very limited material available, given the applicants’ very brief and vague complaint, and in the absence of sufficient medical or other corroborating evidence, the applicants had not raised an arguable claim that they had suffered from physical and/or psychological ill-treatment, and notably treatment which reached the requisite threshold of severity to fall under Article 3. Accordingly, the procedural obligation of the domestic authorities under Article 3 of the Convention was not triggered. The Court would add that for the same reasons, the applicants had not raised an arguable claim that their physical or psychological integrity was adversely affected in such a manner as to trigger the procedural obligation under Article 8 of the Convention (compare also Ghișoiu, cited above, §§ 63-64).
20. The applicant’s complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 September 2023.
Dorothee von Arnim Lorraine Schembri Orland
Deputy Registrar President
Appendix
List of applicants:
No.
Applicant’s Name
Year of birth
Nationality
1.
M.C.G.
1968
Macedonian/citizen of North Macedonia
2.
S.C.
2005
Macedonian/citizen of North Macedonia
3.
T.C.
2008
Macedonian/citizen of North Macedonia