CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 juillet 2019

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RUSSIA   (Application no. 41261/17)                 JUDGMENT     STRASBOURG   9 July 2019       FINAL   04/11/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Volodina v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Vincent A. De Gaetano, President,   Georgios A. Serghides,   Paulo Pinto de Albuquerque,   Dmitry Dedov,   Alena Poláčková,   María Elósegui,   Erik Wennerström, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 11 June 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 41261/17) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Valeriya Igorevna Volodina (“the applicant”), on 1 June 2017. In 2018, the applicant changed her name (see paragraph 39 below). 2.     The applicant was represented by Ms Vanessa Kogan, Director of the Stichting Justice Initiative, a human-rights organisation based in Utrecht, the Netherlands. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 3.     The applicant alleged that the Russian authorities had failed in their duty to prevent, investigate and prosecute acts of domestic violence which she had suffered at the hands of her former partner and that they had also failed to put in place a legal framework to combat gender-based discrimination against women. 4.     On 8 January 2018 the application was communicated to the Government. It was also decided to give priority to the application, in accordance with Rule 41 of the Rules of Court. 5.     The applicant and the Government each lodged written observations. In addition, third-party comments were received from the Equal Rights Trust, a non-governmental organisation based in London, United Kingdom, which had been given leave by the President of the Section to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). The Government replied to those comments (Rule 44 § 5). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1985 and lives in Ulyanovsk. A.     The applicant’s relationship with Mr S. 7.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     First meeting and life together 8.     The applicant began a relationship with Mr S. in November 2014, when they started living together in Ulyanovsk. 9.     In May 2015 they separated for the first time. The applicant moved out. Mr S. became abusive and threatened to kill the applicant and her son if she refused to come back to live with him. 2.     January 2016: Abduction and assault 10 .     On 1 January 2016 the applicant lodged a report with the Ulyanovsk district no. 2 police, complaining that S. had damaged the windscreen of her car and taken her identity papers. On the following day the applicant withdrew her report, claiming that she had found her papers. 11 .     On 5 January 2016 the police declined to institute criminal proceedings, stating that as the documents had been found and as S. had replaced the broken windscreen, no crime had been committed. On 6 June 2016 a supervising deputy prosecutor ordered an additional inquiry, which ended in the issuance of another decision refusing to prosecute S. on the grounds that his actions had not constituted any offence. 12 .     The applicant decided to move away from S., and relocated to Moscow. She did not leave her new address, but she did publish her CV on job-hunting websites. A certain D. called her and, claiming to be a human-resources manager, invited her to an interview at a location outside Moscow. 13 .     On 21 January 2016 D. picked her up in his car and they drove off. On the way, S. emerged from the back of the car, and D. handed the car keys over to him. S. took away the applicant’s mobile phone and personal effects and told her they were going back to Ulyanovsk. 14 .     After their return to Ulyanovsk, on 25 January 2016 S. punched the applicant in the face and stomach. She was taken to Ulyanovsk Central Hospital, where doctors recorded bruises on the soft tissue of her head. They also established that she was nine weeks pregnant but faced the risk of a miscarriage. She agreed to undergo a medically-induced abortion. The applicant called the police to report the beatings. 15.     On 29 January 2016 the police declined to institute proceedings, as they had not received any written complaint against S. from the applicant. On 2   February   2016 the supervising deputy prosecutor ordered an additional inquiry. 16 .     On 31   March 2016 the police obtained a written statement from the applicant in which she withdrew her complaints and refused to undergo a medical assessment. On 1 April 2016 the police declined to institute proceedings in the absence of any complaint from the injured party. The supervising prosecutor set that decision aside, but on 29 June 2016 the police issued a final decision not to investigate, holding that no crime had been committed. 3.     May 2016: Assault 17 .     On 18 May 2016 S. punched the applicant in the face, threw her to the ground and began to strangle her. She complained to the Ulyanovsk police and had her injuries recorded, which included bruises on the left side of her face and abrasions on her shoulders, elbows, shins and thighs. 18.     The Ulyanovsk police determined that the events had occurred in the Samara Region and forwarded the complaint to colleagues in that region. On 9 August 2016 the Samara police received the file and asked the applicant to undergo a medical assessment, which she refused to do. 19 .     On 12 August 2016 the Samara police declined to institute criminal proceedings. Having heard from the applicant and S., it held that no prosecutable offence had been committed: his verbal threats had not been sufficiently specific as to constitute an offence under Article 119 of the Criminal Code (Threat of death or bodily harm), and a single punch was not prosecutable under Article 116 (Battery), which required that two or more blows be inflicted. The supervising prosecutor set that decision aside, but on 28 September 2016 the police again issued a decision declining to prosecute that was worded in identical terms. 4.     July 2016: Assault and an attempt on the applicant’s life 20 .     In May 2016 the applicant returned to Moscow, where she hoped to hide from S. 21 .     On 30 July 2016, as she was about to drive off from her home in her car, S. opened the car door and attacked her. Neighbours who witnessed the fight called the police. On the same day the applicant lodged a criminal complaint against S., stating that he was violent and had threatened her with death. 22 .     On 1 August 2016 the applicant received a text message from S., who told her that he had damaged the hydraulic braking system of her car. She called the police. An officer arrived and took stock of the extent of the damage, noting a cut to a plastic conduit containing a bundle of wires and a pool of transparent liquid next to the rear right-hand wheel. 23 .     On 8 August 2016 the Mozhayskiy district police in Moscow declined to institute criminal proceedings. They found that the applicant and S. “knew each other, had lived together before and had maintained a common household”, that the applicant had not submitted an independent assessment of the damage caused to her car, that a single blow did not constitute an offence under Article 116 of the Criminal Code, and that the verbal threats had been “neither real nor specific” to be prosecutable under Article 119. 24.     On 16 September 2016 the applicant lodged an application with the Kuntsevskiy District Court in Moscow seeking a review of the 8 August 2016 decision. She submitted in particular that the police had not considered the text messaging history, which showed that S. had the intention of causing her death by damaging the brakes of her car. 25.     On 20 September 2016 the supervising prosecutor set aside the 8   August 2016 decision, which he described as being premature and incomplete. He directed the police to consider the text messages from S. 26.     By a judgment of 14 October 2016, which was upheld on appeal on 1 December 2016, the Kuntsevskiy District Court dismissed the applicant’s complaint, finding that the matter had become moot on account of the prosecutor’s decision to order an additional inquiry. 27 .     On 28 October and 24 December 2016 the police issued further decisions declining to prosecute S. on the grounds that his actions had not constituted a criminal offence. 5.     September 2016: Tracking device 28 .     In September 2016 the applicant found an electronic device in the lining of her bag which she believed was a GPS tracker that S. had put there. 29.     On 5 October 2016 she reported her suspicions to the Kuntsevskiy Investigative Committee in Moscow. On 9 March 2017 the report was forwarded to the Special Technical Measures Bureau of the federal police ( Бюро специальных технических мероприятий ГУ МВД РФ ). According to the Government, the Bureau joined the report to the file, without initiating any inquiry. An internal investigation was launched. 6.     March 2018: Publication of photographs 30 .     In early 2018, S. shared the applicant’s private photographs on a social network without her consent. On 6 March 2018 the police initiated a criminal investigation under Article 137 of the Criminal Code (invasion of personal privacy). As at the date of the applicant’s latest submissions in July 2018, the investigation had not yielded any results. 7.     March 2018: Threats and an assault 31 .     On 12 March 2018 the applicant complained to the police about the threatening calls she had received from S. the previous night and about his uninvited presence in front of her house earlier that day. On 21 March 2018 the police declined to open a criminal investigation, finding that there was no danger that S. would carry out his threat to kill her because “[the applicant] remained in her flat, while [S.] stayed in his car and did not go up to the flat”. 32 .     At 1.30 a.m. on 21 March 2018 the applicant called a taxi in order to visit a female friend. Shortly after she got in the taxi, she saw S.’s car following the taxi. He managed to cut off the taxi, pulled the applicant out of the car and began dragging her towards his car. The taxi driver did not intervene. Fearing for her life, the applicant sprayed tear gas in S.’s face. S. pushed her several times, grabbed her purse and drove away with it. The applicant went to the police station and lodged a complaint about the attack and the theft of her personal belongings, which included two mobile phones and identity documents. The taxi driver gave a statement to the police. 33.     Shortly thereafter, S. came to the police station with his lawyer and returned the bag to the applicant, but not the phones or documents. He stated that he had paid for the phones and had let the applicant use them at his discretion. He had asked the applicant to return them but she had refused, and that was why he had been following her. 34.     The next day the applicant found her documents in the mailbox. S. later brought the phones to the police, and they returned them to the applicant against receipt. 35 .     On 20 April 2018 the police declined to open an investigation into the alleged theft of the phones on the grounds that they had been returned to the applicant. The matter of the threats and assault was referred to the local police for additional investigation. 36 .     On 26 April 2018 the local police decided not to institute proceedings in respect of the threats, finding no indications of a criminal offence. In their view, neither the threatening statements nor actions on the part of S. were sufficiently credible to conclude that the death threats had been “real”. 8.     Application for State protection 37 .     On 22 March 2018 the applicant asked the police to grant her State protection, relying on her status as the injured party in the criminal investigation into the publication of her photographs (see paragraph 30 above). The application was forwarded to the regional police headquarters, which issued an opinion addressed to the investigator in charge of the case to the effect that her request was unfounded: “[N]o real threats to her person or property from [S.] or his family members in connection with [the applicant’s] participation in the criminal proceedings have been established. The threats that [the applicant] previously complained about are the product of personal hostility [ личных неприязненных отношений ] between them and of [S.]’s jealousy. [S.] is currently in Moscow, outside the Ulyanovsk Region, and, according to him, has no plans to come back ...” 38.     However, as no formal decision on her application had been taken, the applicant lodged a complaint with a court. On 16 April 2018 the Zavolzhskiy District Court in Ulyanovsk held that the failure to issue a formal decision had been unlawful. It declined to rule on the issue of whether or not the applicant should be granted State protection, leaving this matter for the police to decide. 9.     Change of name 39 .     On 30 August 2018 the applicant secured a legal change of her name. She had asked for it, fearing for her safety, so that S. would not be able to find her and track her movements. B.     Information on gender-based violence in Russia 40.     The applicant submitted the following statistical information and research on gender-based violence in Russia. 41 .     Certified extracts from the statistics of the Ministry of the Interior on “crimes committed within the family or household” ( преступления в сфере семейно-бытовых отношений ) show that, in 2015, the police registered a total of 54,285 such crimes, in which 32,602 women and 9,118 minors had been harmed. More specifically, in 2015, 16,039 cases of battery (Article   116 of the Criminal Code) were recorded, which had involved 9,947 female and 6,680 underage victims. A further 22,717 instances of death threats or threats to inflict serious injury (Article 119 of the Criminal Code) were recorded, in respect of which 15,916 victims were female and 967 underage. In 2016, the total number of such crimes increased to 65,535, with 42,164 female victims and 8,989 underage victims. Battery was recorded in 25,948 cases, of which 19,068 involved women and 6,876 minors. The number of threats of death or injury amounted to 21,730, including 15,820 against women and 890 against minors. In 2017, the total number of family-related offences went down to 38,311. Of those, 24,058 crimes were committed against women and 2,432 against minors. Aggravated battery (Article 116) was committed in 1,780 cases, including 1,450 attacks on women and 250 on minors. “Repeat battery” (Article 116.1) was established in 486 cases, in which 344 victims were female and 119 underage. A total of 20,848 threats of death or injury were recorded, involving 15,353 women and 900 minors. 42 .     Reproductive Health of the Russian Population in 2011 , a joint study by the Russian Federal Statistics Service and the Ministry of Health, found that 38% of Russian women had been subject to verbal abuse and a further 20% had experienced physical violence. In the latter group, 26% had not told anyone about what had happened. Of those who had, a majority of 73% had confided in friends or family, 10% had reported the incident to the police, 6% had visited a doctor and 2% had seen a lawyer. 43 .     Violence in Russian Families in the North-Western Federal Circuit , a joint study by the Institute for Social and Economic Studies of Population of the Russian Academy of Sciences and the Karelian Science Centre’s Economics Institute, polled 1,439 participants aged 18 to 64 in the Republic of Karelia in 2014-15. A majority of participants (51.4%) had either experienced domestic violence or knew someone who had. In more than half of those cases women were victims of such violence, followed by children (31.5%), seniors (15%) and men (2%). 44 .     A “shadow report” to the CEDAW Committee by ANNA Centre for the Prevention of Violence, a Russian non-governmental organisation, provided a general assessment of the domestic-violence situation on the basis of a monitoring exercise conducted in Russia in 2010-15. It stated that monitors had recorded violence in one form or another in every fourth family, that two-thirds of homicides were attributable to family/household-related motives, that about 14,000 women died each year at the hands of their husbands or relatives, and that up to 40% of all serious violent crimes were committed within families. 45 .     A 2017 report by Russia’s High Commissioner for Human Rights noted a lack of progress in addressing the problem of domestic violence (pp.   167-69, translated from Russian): “Complaints to the High Commissioner indicate that the problem [of domestic violence] is a topical issue ... Thousands of women and children suffer from family conflicts. Unfortunately, no official statistical data is available. Despite the topicality of the problem, no specific legislation ensuring the prevention and prosecution of crimes within the family and households has been adopted. Since the early 1990s, more than forty draft laws have been developed but none has been enacted ... Actual instances of violence against women are highly latent. Many women prefer to put up with it or to look for ways to solve the issue without involving official authorities, because they do not expect to find support from them. Unfortunately, the practice has demonstrated that women’s complaints of threats of violence have received little attention. Thus, in December 2017, the public was shocked by an incident in the Moscow Region, when Mr G., seeking to assert his dominant position and acting out of jealousy, chopped off his wife’s hands. Prior to that, he had threatened her with death and had told her that he would maim her. Eighteen days before the incident, the woman had reported the threats to a district police inspector, who had intervened only to the extent of issuing an admonition ... The High Commissioner supports a public discussion of whether Russia should join the Council of Europe’s Istanbul Convention ...” II.     RELEVANT DOMESTIC LAW 46 .     Chapter 16 of the Russian Criminal Code covers offences against the person, including murder and manslaughter (Articles 105 to 109) and three levels of assault occasioning actual bodily harm (Articles 111 to 115). “Grievous bodily harm” (Article 111) may involve the loss of a body part or the termination of pregnancy; “medium bodily harm” (Article 112) leads to a long-term health disorder or loss of ability to work, and “minor bodily harm” (Article 115) covers injuries that take up to twenty-one days to heal. Causing grievous or medium bodily harm is subject to public prosecution; the offence of “minor bodily harm” is liable to private prosecution, meaning that the institution and pursuance of criminal proceedings is left to the victim, who has to collect evidence, identify the perpetrator, secure witness testimony and bring charges before a court. Private prosecution proceedings can be terminated at any stage up until the delivery of judgment in the event that the victim has agreed to withdraw the charges. 47.     Other forms of assault which may cause physical pain without resulting in actual bodily harm are treated as “battery” ( побои ) under Article 116. This provision has recently been amended a number of times. 48 .     Up until 3 July 2016 any form of “battery” constituted a criminal offence punishable by a fine, community work, or up to three months’ detention. Aggravated battery could be punished with a longer period of deprivation of liberty. Prosecution of the offence was left to the private initiative of the victim. The law did not differentiate between various contexts in which the offence could be committed, whether within the family or between strangers. 49 .     On 3 July 2016 the provision was substantially amended. First, common (non-aggravated) form of battery was decriminalised and reclassified as an administrative offence. Second, a new form of aggravated battery was created which included battery committed in respect of “close persons”, that is to say spouses, parents, siblings and domestic partners, and was punishable by a deprivation of liberty. That form of battery became subject to a mixed “public-private” prosecution regime which applies to some other offences, such as rape. Proceedings had to be instituted at the victim’s initiative, but the subsequent investigation and prosecution were to be led by the authorities and could not be discontinued, even with the victim’s consent. Third, a new Article 116.1 was inserted into the Criminal Code. It created a new offence of “repeat battery” defined as battery committed by a person who had been convicted of the same actions in administrative proceedings within the previous twelve months and whose actions did not constitute aggravated battery under Article 116. The offence can only be prosecuted privately and is punishable by a fine or up to three months’ detention. 50 .     On 7 February 2017 the reference to “close persons” was removed from the definition of aggravated battery in the text of Article 116 for the purpose of decriminalising acts of battery inflicted by spouses, parents or partners. The only remaining forms of aggravated battery now include battery committed for racial, ethnic, social or disorderly ( хулиганские ) motives. III.     RELEVANT INTERNATIONAL MATERIAL A.     Universally applicable standards on violence against women 1.     CEDAW Convention and its interpretation 51.     The Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW Convention”), which Russia ratified on 23   January 1981, provides a comprehensive international framework in which gender-based violence against women is seen as a manifestation of the historically unequal power relationship between women and men. The relevant provisions read: Article I “For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Article 2 “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: ... (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.” Article 3 “States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.” Article 5 “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women ...” 52 .     The United Nations Committee on the Elimination of Discrimination against Women (“the CEDAW Committee”) – the UN expert body that monitors compliance with the CEDAW Convention – established in its General recommendation No. 19 (1992) that “gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men” (§ 1) and that “the full implementation of the Convention required States to take positive measures to eliminate all forms of violence against women” (§ 4). It further explained that such violence “impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions” (§ 7) and made specific recommendations to the State parties, including recommending the encouragement of “the compilation of statistics and research on the extent, causes and effects of violence, and on the effectiveness of measures to prevent and deal with violence” (§ 24). 53 .     In its General Recommendation No. 28 (2010) on the core obligations of States Parties under Article 2 of the CEDAW Convention, the CEDAW Committee noted that “States parties have a due diligence obligation to prevent, investigate, prosecute and punish ... acts of gender based violence” (§ 9). 54 .     The CEDAW Committee’s General recommendation No. 33 (2015) on women’s access to justice called on States to “take steps to guarantee that women are not subjected to undue delays in applications for protection orders and that all cases of gender-based discrimination under criminal law, including violence, are heard in a timely and impartial manner” (§ 51(j)). 55 .     In 2017, the CEDAW Committee adopted General recommendation No.   35 on gender-based violence against women, updating General recommendation No. 19. It noted that the interpretation of discrimination given in the former recommendation had been affirmed by all States and that the opinio juris and State practice suggested that the prohibition of gender-based violence against women had evolved into a principle of customary international law (§§ 1-2). It pointed out that “gender-based violence against women [was] rooted in gender-related factors such as the ideology of men’s entitlement and privilege over women, social norms regarding masculinity, the need to assert male control or power, enforce gender roles, or prevent, discourage or punish what is considered to be unacceptable female behaviour. These factors also contribute to the explicit or implicit social acceptance of gender-based violence against women, often still considered as a private matter, and to the widespread impunity for it” (§   19). The Committee reaffirmed that “gender-based violence against women constitute[d] discrimination against women under article 1 and therefore engage[d] all of the obligations in the [CEDAW]” (§ 21). It listed the due diligence obligations that State parties have in respect of acts and omissions on the part of non-State actors (§ 24(b)): “Article 2 (e) of the [CEDAW] explicitly provides that States parties are required to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise. This obligation, frequently referred to as an obligation of due diligence, underpins the Convention as a whole and accordingly States parties will be responsible if they fail to take all appropriate measures to prevent as well as to investigate, prosecute, punish and provide reparation for acts or omissions by non-State actors which result in gender-based violence against women ... Under the obligation of due diligence, States parties have to adopt and implement diverse measures to tackle gender-based violence against women committed by non-State actors. They are required to have laws, institutions and a system in place to address such violence. Also, States parties are obliged to ensure that these function effectively in practice, and are supported and diligently enforced by all State agents and bodies. The failure of a State party to take all appropriate measures to prevent acts of gender-based violence against women when its authorities know or should know of the danger of violence, or a failure to investigate, prosecute and punish, and to provide reparation to victims/survivors of such acts, provides tacit permission or encouragement to acts of gender-based violence against women. These failures or omissions constitute human rights violations.” (footnotes omitted) 56 .     In V.K. v. Bulgaria (Communication No.   20/2008, 15 October 2008), the CEDAW Committee took the view that “gender-based violence constituting discrimination within the meaning of article 2, read in conjunction with article 1, of the [CEDAW] Convention and general recommendation No. 19, does not require a direct and immediate threat to the life or health of the victim” (§ 9.8). When assessing whether a protection order should be granted, courts should take account of all forms of violence against women, without neglecting their emotional and psychological suffering or the past history of domestic violence. Furthermore, the standard of proof that the victim must meet in order to be awarded a protection order should not amount to the standard of proof required in criminal cases – that is to say that of “beyond reasonable doubt” – because such a standard of proof is excessively high and not in line with the CEDAW Convention (§   9.9). 2.     UN Special rapporteurs 57 .     The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment assessed the applicability of the prohibition of torture under international law to the unique experiences of women in the report adopted at the thirty-first session of the Human Rights Council, held between 29 February and 24 March 2016 (A/HRC/31/57). He reiterated that “full integration of a gender perspective into any analysis of torture and ill-treatment is critical to ensuring that violations rooted in discriminatory social norms around gender and sexuality are fully recognized, addressed and remedied” (§ 6) and that “when a State knows or should have known that a woman is in danger, it must take positive steps to ensure her safety, even when she hesitates in pursuing legal action” (§ 12). He stated: “55.     ... Domestic violence amounts to ill-treatment or torture whenever States acquiesce in the prohibited conduct by failing to protect victims and prohibited acts, of which they knew or should have known, in the private sphere ... States are internationally responsible for torture when they fail — by indifference, inaction or prosecutorial or judicial passivity — to exercise due diligence to protect against such violence or when they legitimize domestic violence by, for instance, allowing husbands to ‘chastize’ their wives or failing to criminalize marital rape, acts that could constitute torture. 56.     Societal indifference to or even support for the subordinate status of women, together with the existence of discriminatory laws and patterns of State failure to punish perpetrators and protect victims, create conditions under which women may be subjected to systematic physical and mental suffering, despite their apparent freedom to resist. In this context, State acquiescence in domestic violence can take many forms, some of which may be subtly disguised (A/HRC/7/3). States’ condoning of and tolerant attitude towards domestic violence, as evidenced by discriminatory judicial ineffectiveness, notably a failure to investigate, prosecute and punish perpetrators, can create a climate that is conducive to domestic violence and constitutes an ongoing denial of justice to victims amounting to a continuous human rights violation by the State.” 58 .     In her report on violence against women, its causes and consequences adopted at the thirty-fifth session of the Human Rights Council on 6-23 June 2017, the UN Special Rapporteur on violence against women identified key elements of a human-rights based approach to protection measures: “112.   States shall make the necessary amendments to domestic legislation to ensure that protection orders are duly enforced by public officials and easily obtainable. a)     States shall ensure that competent authorities are granted the power to issue protection orders for all forms of violence against women. They must be easily available and enforced in order to protect the well-being and safety of those under its protection, including children. b)     Protection orders for immediate protection in case of immediate danger of violence (emergency orders) should be available also ex parte and remain in effect until the longer-term protection orders comes into effect after a court-hearing. They should be available on the statement or live evidence of the victim, as seeking further evidence may lead to delays which put the victim at more risk. They typically should order a perpetrator to vacate the residence of the victim for a sufficient period of time and prohibit the perpetrator from entering the residence or contacting the victim. c)     The availability of protection orders must be: i)     irrespective of, or in addition to, other legal proceedings such as criminal or divorce proceeding against the perpetrator; ii)     not be dependent on the initiation of a criminal case iii)     allowed to be introduced in subsequent legal proceedings. Many forms of violence, particularly domestic violence, being courses of conduct which take place over time, strict time-limit restrictions on access to protection orders should not be imposed. The standard of proof that an applicant must discharge in order to be awarded with an order should not be the standard of criminal proof. d)     In terms of content, protection orders may order the perpetrator to vacate the family home, stay a specified distance away from the victim and her children (and other people if appropriate) and some specific places and prohibit the perpetrator from contacting the victim. Since protection orders should be issued without undue financial or administrative burdens placed on the victim, protection orders can also order the perpetrator to provide financial assistance to the victim.” 3.     Council of Europe 59 .     The Committee of Ministers’ Recommendation Rec   (2002)5 of 30   April 2002 on the protection of women against violence defined the term “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty” (Appendix, § 1). In the sphere of criminal law, it established that member States should “provide for appropriate measures and sanctions in national legislation, making it possible to take swift and effective action against perpetrators of violence and redress the wrong done to women who are victims of violence” (§ 35). As regards judicial proceedings, member States should in particular “make provisions to ensure that criminal proceedings can be initiated by the public prosecutor” (§ 39) and “ensure that measures are taken to protect victims effectively against threats and possible acts of revenge” (§ 44). Among additional measures with regard to violence within the family, member States should “classify all forms of violence within the family as criminal offences” (§ 55) and “enable the judiciary to adopt, as interim measures aimed at protecting the victims, the banning of a perpetrator from contacting, communicating with or approaching the victim, residing in or entering certain defined areas” (§   58 (b)). 60.     The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”) was released for signing on 11 May 2011 and entered into force on 1 August 2014. Russia is one of the two member States that have not signed the Istanbul Convention. The definition of “violence against women” in Article 3 is identical to that in paragraph 1 of Recommendation Rec   (2002)5. “Domestic violence” is defined to include “all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim”. B.     Material relating to violence against women in Russia 61 .     Integration of the human rights of women and a gender perspective: violence against women , a report of the Special Rapporteur on violence against women, its causes and consequences, following her visit to the Russian Federation from 17 to 24 December 2004 (E/CN.4/2006/61/Add.2), took stock of the magnitude of the problem of domestic violence: “26.   Although statistics on domestic violence in particular and violence against women in general are inconsistent, existing data reveals a worrisome increase in domestic violence since the collapse of the Soviet Union. Reportedly, 80 per cent of violent crimes against women are cases of domestic violence. Between 1994 and 2000, the number of reported cases increased by 217 per cent to 169,000. Over a 10-month period in 2004, the Ministry of Interior reported 101,000 crimes related to the family - a 16 per cent increase over the previous year. The State party’s report to the Committee on the Elimination of Discrimination against Women (CEDAW) in 1999 acknowledged that 14,000 women were killed annually by their husbands or other family members. The report went on to state that the ‘situation is exacerbated by the lack of statistics and indeed by the attitude of the agencies of law and order to this problem, for they view such violence not as a crime but as ‘a private matter’ between the spouses’ (CEDAW/C/USR/5, para. 6 [on page 38]). 27.     ... the main cause is rooted in patriarchal norms and values. In many meetings held by the Special Rapporteur, authorities referred to an ancient Russian proverb, ‘a beating man is a loving man!’ Due to strong patriarchal values, husbands in Russia are generally considered superior to their wives with the right to assert control over them, legitimizing the general opinion that domestic violence is a private issue. Women are often blamed for having provoked the violence ... 28.     ... women’s groups claim that domestic violence remains seriously under-reported, under-recorded and largely ignored by the authorities. Furthermore, social stigma is connected to sexual and domestic violence, pressuring victims to keep silent and ‘solve it’ within the family. This stigma results in weak public pressure for State action, which may explain why the problem is low on the State agenda. ... 36.     The lack of a specific law on domestic violence in Russia is a major obstacle to combating this violence. While the State Duma has considered as many as 50 draft versions of a law on domestic violence, none has been adopted. The Ministry for Foreign Affairs attributes this to the financial implications of the draft bills, members of the Committee on Women, Children and Family of the State Duma, however, indicated that violence against women is not a priority for the State and that most opponents of the bill claim it would duplicate existing legal provisions. They argue that perpetrators of domestic violence can be prosecuted under articles 111 to 115 of the Russian Criminal Code, which criminalize inflicting intentional harm on another person ... However, according to women’s groups, these provisions are often interpreted too narrowly to apply to domestic violence cases, making it difficult to punish perpetrators. 38.     The lack of specific legislation contributes to impunity for crimes committed in the private sphere. It deters women from seeking recourse and reinforces police unwillingness, or even refusal, to deal seriously with the problem, as they do not consider it a crime. Reportedly, police officers, when called on may refuse to come to the scene, even in critical situations. When they do come, they may not register the complaint or arrest the perpetrator, but instead pressure the couple to reconcile their differences. In the process, the case goes unrecorded and the victim may not receive necessary medical treatment for her injuries. 39.     Where women are assertive in trying to file a complaint, the officers allegedly delay the filing process or make it difficult. Police also reportedly blame victims and treat them in a discriminatory and degrading manner. Some women also report further abuse at police stations when filing a complaint. Under such circumstances, investigation into complaints seems unlikely ... 40.     ... If the police do arrest the perpetrator, they normally keep him in detention for less than a day or slightly longer in ‘serious cases’, then release him without charge. When he returns home, he may commit even worse acts of violence in revenge. With no system of restraining or civil protection orders, local officials lack a legal mechanism to protect the victim from further violence once the perpetrator has been released. 41.     Owing to police inaction, many victims of domestic violence do not file complaints – 40 per cent of women victims of domestic violence never seek help from law enforcement agencies. In cases that are filed, victims reportedly often withdraw their complaint due to lack of confidence in the justice system, economic dependency on or threats from the perpetrator, fear of losing custody of their children or the social stigma connected with domestic violence. Thus, very few complaints ever reach the courts or result in prosecution ...” 62 .     The concluding observations on the fifth periodic report of the Russian Federation on the implementation of the International Covenant on Economic, Social and Cultural Rights (E/C.12/RUS/CO/5), adopted by the UN Committee on Economic, Social and Cultural Rights on 20 May 2011, noted with concern “the continued prevalence of domestic violence” and recommended “adopting a specific legislative act criminalizing domestic violence” (§ 22). 63 .     The concluding observations on the fifth periodic report of the Russian Federation (CAT/C/RUS/CO/5), adopted by the UN Committee against Torture on 22 November 2012, included violence against women among the principal subjects of concern: “14. Despite consistent reports of numerous allegations of many forms of violence against women throughout the State party, the Committee is concerned that there are only a small number of complaints, investigations and prosecutions of acts of domestic violence and violence against women, including marital rape. It is also concerned about reports that law enforcement officers are unwilling to register claims of domestic violence, and that women who seek criminal investigations of allegations of domestic violence are compelled to participate in reconciliation processes. The Committee is also concerned about the absence in the State party’s law of a definition of domestic violence (arts.