Case of D.H. and Others v. North Macedonia, (Application no. 44033/17)

A selection of key paragraphs can be found below the judgment.

37. As regards the applicants’ allegations that they were not provided with water, food and access to a toilet, the Court notes that the Court of Appeal’s judgment, contrary to the findings of the first-instance court (see paragraphs 17 and 19 above), merely states that their statements had been contradictory but provides no explanation as to what those contradictions were as to the substance of the applicants’ complaint. It appears that the Court of Appeal largely relied on the conclusions reached in the proceedings before the investigating judge who did not examine the applicants’ grievances as to the lack of access to food, water and a toilet (see paragraph 12 above). In this context, the Court observes that the applicants’ description as to the circumstances regarding their alleged inhuman and degrading treatment in that they were not provided with water, food and access to a toilet was very detailed, specific and consistent in the proceedings before both the investigating judge and the civil courts (see paragraphs 8-10 and 15 above).

The Court observes further that all of them confirmed that they had not been given access to food, water or a toilet. The first and third applicants further stated that “a woman had urinated on herself”. They stated that the police officers had called them “whores” and that the event had instilled in them feelings of inferiority and humiliation. All of this was confirmed by two other direct protagonists, who were present at the scene as detainees together with the applicants (see paragraph 16 above). The Court notes the statements of above) and later by the Government before the Court (see paragraph 33 above), but it considers them insufficient to outweigh the facts described by the applicants. In this connection it is noteworthy that Mr Zh.B. left the police station at around 1 a.m., that is only a few hours after the start of the applicants’ detention, and he could not have witnessed the ensuing events – a fact that the Court of Appeal disregarded (see paragraph 19 above). In addition, there are other aspects of the case which further strengthen the credibility of the applicants’ depiction of events. In this connection, it had to be assumed that the applicants, that belonged to a vulnerable group recognised in various international instruments (see S.M. v. Croatia [GC], no. 60561/14, §§ 107-209, 25 June 2020), would not have been able to gather evidence in respect of the above events while being held in the police station under full control of the police officers without the presence of any other persons. In the light of the above circumstances, the Court also takes note of the expert opinion issued in 2015 concerning the applicants’ medical condition, which, taken together with the above circumstances, attests to the fact that the applicants had suffered from hunger and thirst and had been unable to satisfy their physiological needs or to maintain personal hygiene (see paragraph 18 above). Accordingly, bearing in mind that the alleged events in issue lied wholly within the exclusive knowledge and control of the authorities and that the burden of proof was on the Government to provide a satisfactory and convincing explanation, the Court notes that the Government have failed to present sufficient evidence demonstrating conclusively that the police authorities took account of the applicants’ basic needs, such as by providing them with food, water and access to a toilet (see, mutatis mutandis, Bouyid, cited above, §§ 83-84, and Iustin Robertino Micu v. Romania, no. 41040/11, § 71, 13 January 2015).

38. The foregoing is sufficient for the Court to conclude that there has been a violation of Article 3 of the Convention in this respect.