Facts
The complainant A. filed a criminal complaint against her husband X. on 26 June 2015 and requested prosecution for simple assault (or battery), threats and deprivation of liberty (or coercion), allegedly committed between September 2014 and March 2015. On 16 August 2016, the public prosecutor’s office of the Canton of Fribourg discontinued the proceedings against X. A. appealed against this decision to the Fribourg Cantonal Court, which dismissed the appeal on 27 October 2016. A. then filed an appeal in criminal matters with the Federal Supreme Court seeking the annulment of the lower courts’ decisions and an order for the public prosecutor’s office to continue the criminal proceedings.
During the confrontation hearing on 14 April 2016, both parties made their statements: the complainant claimed that she had been beaten by her husband every three to four days from mid-September 2014 to March 2015, while he denied the allegations and, in turn, claimed that the complainant had encouraged her family in Kosovo to beat him. He also submitted documents purportedly evidencing an assault on him in Kosovo on 1 January 2016. No further evidence, such as medical reports or witness statements, was available.
Considerations
The Federal Supreme Court confirmed the jurisprudence on the principle of “in dubio pro duriore”, according to which a discontinuation of criminal proceedings is only permissible if there is clear impunity or if the procedural requirements are obviously lacking. In a he-said-she-said situation, charges are generally to be brought, particularly in cases involving serious offences or “offences requiring corroboration”, where objective evidence is typically unavailable. Discontinuation is only permissible if the complainant’s statements are contradictory or implausible or if a conviction appears unlikely from the outset in light of all circumstances.
In the present case, the lower court was entitled, without arbitrariness, to deny a sufficient suspicion of guilt, as the complainant’s account of the alleged physical assaults was very general and unsubstantiated. Moreover, there was no further evidence, such as medical reports or witness statements, to support the allegations. The psychiatrist consulted by the complainant could only rely on her statements and not on her own observations. The public prosecutor’s office and the Cantonal Court were therefore justified in assuming an unclear evidentiary situation and correctly applying the principle of “in dubio pro duriore” by not bringing charges.
The Federal Supreme Court reviewed the lower court’s findings of fact only for arbitrariness under Art. 97 para. 1 FSCA. Findings of fact are arbitrary if the authority bases its decision on facts that clearly contradict the actual situation or are based on an obvious error.…