CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 mai 2023

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display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sB00DFE03 { width:22.87pt; display:inline-block } .s9A659E2E { width:118.41pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   THIRD SECTION CASE OF A.E. v. BULGARIA (Application no. 53891/20)     JUDGMENT   Art 3 (substantive and procedural) • Positive obligations • Failure to provide adequate protection, in law and in practice, to a child victim of domestic violence • Failure to put in place an effective domestic legal framework punishing all forms of domestic violence and providing sufficient safeguards for victims • Ineffective investigation into allegations of serious violence • Applicable legal provisions incapable of adequately responding to violence inflicted on victims unable to initiate and pursue judicial proceedings as private prosecutors Art 14 (+ Art 3) • Discrimination • Domestic authorities’ failure to adequately address domestic violence against women   STRASBOURG 23 May 2023 FINAL   23/08/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.E. v. Bulgaria, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georgios A. Serghides , President ,   Pere Pastor Vilanova,   Yonko Grozev,   Darian Pavli,   Peeter Roosma,   Ioannis Ktistakis,   Oddný Mjöll Arnardóttir , judges , and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   53891/20) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms A.E. (“the applicant”), on 26 November 2020; the decision to give notice to the Bulgarian Government (“the   Government”) of the complaints concerning the allegedly inadequate legal framework and practical response of the authorities to the applicant’s complaints that she had been the victim of domestic violence; the decision not to have the applicant’s name disclosed; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the National Network for Children, which was granted leave to intervene by the President of the Section; Having deliberated in private on 2 May 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns complaints under Articles 3 and 14 of the Convention of the allegedly inadequate response of the authorities, both in law and in practice, to the applicant’s complaints that she had been the victim of domestic violence. THE FACTS 2.     The applicant was born in 2004 and lives in Kostinbrod. She was represented by Ms N. Dobreva, a lawyer practising in Sofia. 3.     The Government were represented by their Agent, Mrs V. Hristova, from the Ministry of Justice. 4.     The facts of the case may be summarised as follows. Background 5 .     The applicant, who had a difficult relationship with her mother following the death of her father in 2018, had just turned fifteen when she started a relationship with a 23-year-old man, D.M. In April 2019 she moved in with D.M., into his house in a village; he provided for her upkeep and she kept some of her personal belongings there. According to the applicant, he beat her regularly. beating on 8 September 2019 6 .     The applicant claims that D.M. beat her in the evening of 8 September 2019. It appears from the file that she ran away from him and was examined in an emergency room by a forensic doctor on the night of 8 to 9 September 2019. Medical report on the applicant’s injuries 7 .     The forensic medical report of 9 September 2019 recorded the following haematomas on the applicant’s body: on the left side of the forehead (measuring 3.5 cm by 2.5 cm), on the lower left eyelid (measuring 2.5 cm by 0.8 cm), on the inner side of the left cheek (measuring 0.7 cm by 0.2 cm), on the lower right side of the jaw (measuring 2 cm by 1.5 cm), behind the left ear (measuring 2 cm by 0.6 cm), on the left side of the neck (two marks measuring 1.7 cm by 0.3 cm and 5 cm by 0.4 cm respectively, located about 1 cm apart), on the right side of the neck (measuring 1.5 cm by 0.3 cm), on the left armpit (two marks measuring 2 cm by 1cm and 1.5 cm by 1 cm respectively), on the left upper arm (measuring 2.5 cm by 1.5 cm), on the back of the right shoulder (measuring 4 cm by 2 cm) and on the inner right thigh (measuring 5 cm by 5 cm). 8 .     In addition, the report recorded a bruise measuring 2.5 cm by 0.2 cm on the front of the right lower leg, which was covered by a reddish-brown scab. It further indicated that the applicant had declined a gynaecological examination. 9 .     The report concluded that the traumatic injuries had been caused by blows and pressure applied with or over hard objects, some of which were blunt and some of which had edges. The report stated that the injuries could have been caused in the manner and at the time described, and had caused the applicant pain and suffering. Notice of beating Given to the prosecution 10 .     On 10 September 2019 the applicant’s mother informed social services about the incident of 8 September 2019, during which her daughter had been physically assaulted by D.M. (see paragraph 6 above). 11 .     On 26 September 2019 the director of the local directorate for social assistance gave the prosecution service notice that a crime had been committed against a minor, and requested that pre-trial criminal proceedings be opened in this regard. The notice specified that since March 2019 the applicant, a 15-year old minor, had been in an intimate relationship with D.M., who was 23-year old, and lived with him in his house (see paragraph 5 above). The document gave written descriptions of several beatings of the applicant by D.M. which had reportedly taken place in the preceding months. Most frequently he would push her to the ground and kick her while she lay there. On one occasion he had pushed her rolling down a hill into bushes; her mother had seen her with scratches all over her body. A yet more serious beating had taken place at the end of August 2019, but – as with the previous incidents – the applicant had refused to be examined by a doctor. D.M.’s former girlfriend as well as his own sister had also been victims of physical violence on his part. 12 .     The notice to the prosecution service specified that during one of the beatings, on 8 September 2019, D.M. had slapped the applicant in the face, applied pressure to her neck using his hands, pushed her to the ground, hit her head against the floor, and kicked her while she had been on the ground. The applicant had felt pain in her head, jaw, chest and abdominal area, and had been seriously frightened. 13.     The notice stated that the applicant had been the victim of several offences allegedly perpetrated by D.M. on 8 September 2019: in the first place, attempted murder under Article 115 in conjunction with Article 18 of the Criminal Code (“the CC”), given that the marks on her neck indicated that pressure had been applied to her carotid artery. Such an act, according to the notice, generally led to life-threatening consequences, as it stopped blood flow to the brain and caused loss of consciousness and death within a few seconds. Furthermore, the same act also represented minor bodily harm under Article 130 of the CC, defined by the forensic doctor as “pain and suffering” and subsumed by the more serious offence under Article 115 of the CC. 14.     In addition, the attack on the applicant represented ill-treatment of a minor under Article 187 of the CC, as she lived with D.M. and was in his care. Aside from the beating on 8 September 2019, D.M. was also guilty of living unlawfully with a minor as her husband without being married to her, an offence under Article 191 of the CC. 15 .     All of the above represented “sufficient data pointing to a crime having been committed” within the meaning of Article 211 of the Code of Criminal Procedure (“the CCP”). The notice specifically asked the prosecutor to investigate the minor bodily harm which the applicant had suffered, an offence subject to private prosecution, as an offence subject to public prosecution instead, on the basis of a prerogative which the prosecutor had under Article 49 of the CCP (see paragraph 44 below). It also suggested that the prosecution service question the applicant’s mother, as well as the alleged aggressor’s own sister and former girlfriend, who could testify about his character. social services report on the applicant 16 .     On 7 October 2019 social services prepared a report on the applicant’s situation. The report recorded the following. Social services had been dealing with her case since January 2019, when her mother had contacted the authorities after the applicant had run away from home. The applicant had been temporarily placed in a psychiatric clinic for minors at the beginning of 2019. Having established that she had been at risk of becoming a victim of human trafficking or sexual exploitation, staff from the local social services office had explored possibilities for placing the applicant in a crisis centre for minors anywhere on the territory of the country, without success, due to lack of places. Thereafter, social services had provided psychological support to both the applicant and her mother. According to the applicant’s teacher, she continued to display provocative behaviour at school. 17 .     According to her mother, since August 2019 the applicant had been living in an intimate relationship with D.M., who was an adult. She had rarely gone home and he had been repeatedly subjecting her to physical abuse. 18.     On 10 September 2019 the applicant’s mother had informed social services about an incident of 8 September 2019, during which her daughter had been physically assaulted by D.M. (see paragraph 10 above). Social services had written to the prosecutor about it (see paragraph 11 above). 19 .     In a telephone conversation between the mother and social-services staff on 1 October 2019, she had stated that D.M. had again beaten her daughter. Specifically, he had torn her clothes apart, she had a haematoma behind one of her ears and complained that she could not hear. The applicant’s mother had managed to speak to D.M. on the phone and he had attempted to explain the incident away. On 2 October 2019, the mother had informed social services that she had managed to convince the applicant to complain to the police about the abuse she had suffered. 20.     As of 7 October 2019, the relationship between the applicant and D.M. was not over. 21 .     Given that the applicant’s mother was unable to exercise parental control over her daughter’s conduct, in order to ensure the applicant’s health and safety, social services issued an order on 8 October 2019 placing her outside her family, a protection measure under the Child Protection Act. Follow-up by the prosecutors on the notice by social services of 26 september 2019 22 .     The Kostinbrod district prosecutor ordered a preliminary check, to be carried out by the police. The prosecutor directed that the following be done in that context: the applicant and her mother be interviewed, so that it could be established where and with whom the applicant lived, whether she attended school and who took care of her; the circumstances in which she had sustained the harm recorded in the medical certificate be established; social services be invited to draw up a report on the applicant’s case; D.M. be interviewed in relation to the allegations in the notice brought to the attention of the prosecutors, and he be warned in accordance with the Ministry of the Interior Act, including as regards his criminal responsibility in the event of causing moderate or grievous bodily harm, threatening with murder or making threats in the context of domestic violence; any other steps necessary for clarifying the situation be pursued. 23 .     According to the police report produced at the end of that inquiry, the police had met with and questioned the applicant. She had told them that her boyfriend, D.M., had inflicted the injuries recorded in the medical certificate (see paragraphs 7 to 9 above), but she had not wished to go into detail about this. She had stated that she and D.M. were “no longer as close to each other” and had asked to withdraw her complaint because he no longer bothered her. 24.     The applicant’s mother had also been questioned. She had stated that her daughter had been in a relationship with D.M. since mid-august 2019. She (her daughter) would be absent from home for days at a time, only returning to do her laundry and shower, and leaving again without saying where she was going or for how long. She frequently called her mother in the middle of the night to go and collect her from the village where D.M. lived, but then would either not pick her phone up or switch it off, so she could not be reached. For about a week preceding the questioning, the applicant had been living at her mother’s home. The mother also described how on 8 September 2019 she had collected her daughter from the village where D.M. lived, after the applicant had run away from him because he had beaten her (see paragraph 6 above); the applicant had then told her mother that she was hurting all over, as D.M. had kicked her in the stomach area and on the legs, had shoved her against a wardrobe and had tried to strangle her. The mother had taken the applicant to hospital that same night (see paragraph 6 above) where lesions over her whole body were found and recorded (see paragraphs   7 to 9 above). 25 .     The police had also collected a report from social services (see paragraphs 16 to 21 above), from which it could be seen that on 8 October 2019 the applicant had been temporarily placed in a crisis centre for child victims of trafficking or other violence. 26 .     When interviewed by the police in the context of the inquiry, D.M. had denied beating or psychologically abusing the applicant, and had stated that they had been friends for about a month. The police had handed him a written warning in accordance with section 65 of the Ministry of the Interior Act (see paragraph 42 below), clarifying his criminal responsibility in the event of his committing the offences described at the end of paragraph 22 above. 27.     On 19 November 2019 the Kostinbrod district prosecutor refused to open criminal proceedings. The prosecutor found that only an offence subject to private prosecution, namely minor bodily harm, had been committed and that the conditions under Article 49 of the CCP (see paragraph 43 below) were not met. Furthermore, the police had informed D.M. about criminal responsibility in case of inflicting moderate or grievous bodily harm, or threatening with murder or making other threats in the context of domestic violence. Appeals by the applicant 28.     The applicant, assisted by a lawyer, challenged the district prosecutor’s refusal to open criminal proceedings before hierarchically superior prosecutors. She argued in particular that she had presented evidence of violence committed against her and evidence which corresponded to three offences subject to public prosecution. She also emphasised the gravity of those offences, in the context of her age and gender. She relied on Article 3 of the Convention and on related case-law of the Court. 29 .     On 6 February 2020 the Sofia regional prosecutor confirmed the refusal to open criminal proceedings. Specifically, the prosecutor found that the bodily harm caused to the applicant had not been serious enough to warrant the opening of criminal proceedings for attempted murder, given that not every application of pressure to a person’s throat could be classified as attempted murder. To be qualified as such, the offence had to be of intensity capable of achieving the aim of choking the victim, or at the very least to have started the life-threatening processes which occur during strangulation. The medical report issued to the applicant after the incident did not contain information that her life had been endangered. In addition, there was no evidence that the applicant and D.M. had lived together as husband and wife (an offence under Article 191 of the CC): on the one hand, it had not been categorically established that she had moved in with him and, on the other hand, the existence of a relationship of an intimate nature had only been claimed by the applicant’s mother, yet had not been verified, the applicant having refused a gynaecological examination on 9 September 2019 (see paragraph 8 above). Finally, the applicant had not been in the care of D.M., so it was unnecessary to discuss whether her beating fell under Article 187 of the CC. The Sofia regional prosecutor concluded that the applicant could seek justice in the form of private prosecution proceedings, which the law entitled her to bring directly in court. 30.     The applicant appealed again. She pointed out that her beating was classified as ill-treatment under Article 3 of the Convention and under the United Nations Convention on the Rights of the Child, hence it had to be investigated before a conclusion could be reached. On 10 April 2020 the Sofia appellate prosecutor upheld the lower prosecutor’s decision, finding the conclusions in that decision correct. 31.     The applicant appealed before the Supreme Cassation Prosecutor’s Office, arguing that under the Convention the authorities had a positive obligation to investigate complaints of domestic violence, and referred to the related case-law of the Court. She pointed out that relevant evidence had not been collected. She also stated that a private criminal prosecution could not provide appropriate redress and was not an effective remedy for her as a minor. Given her complaints that she had been the victim of several offences subject to public prosecution, she did not have to pursue a private prosecution for only one of them. 32.     On 4 August 2020 the Supreme Cassation Prosecutor’s Office (“SCPO”) informed the applicant that there were no reasons to overturn the refusal to investigate her complaints. In particular, the Sofia regional prosecutor’s refusal to open criminal proceedings had been well motivated and sufficiently detailed. 33 .     In a letter of 20 August 2021, addressed to the Office of the Government Agent in the Ministry for Justice and prepared in the context of providing information for the purposes of the present application before the Court, the SCPO confirmed that in the applicant’s case the prosecutors had established that an offence under Article 130 of the CC (minor bodily harm) had been committed and that offence was subject to private prosecution (see paragraph 35 below). The SCPO further specified that, to be considered committed “in the context of domestic violence”, the law, namely Article   93 (31) of the CC, required the act to be preceded by systematic physical, sexual or psychological violence and to have been inflicted on a person with whom the perpetrator lived in the same household or was in a de facto marital relationship (see paragraph 37 below). 34 .     The SCPO stated that, in the applicant’s case, it had been established that a single act of violence had been committed against her. Furthermore, lasting cohabitation as required in law had not been established, given that the applicant had stayed at D.M.’s dwelling for a few days at a time, but had kept returning to her mother’s home only to leave again without specifying where she was going. Finally, the applicant could not have lived with D.M. in a de facto marital relationship either. The definition of de facto marital relationship was to be found in particular in point 6 of the Additional Provisions of the Judiciary Act (see paragraph 38 below); such a relationship required two adult individuals to voluntarily live together as husband and wife in the same household for no less than two years taking care of each other and of the household. This legal definition excluded the possibility for the applicant and D.M. to have been in a de facto marital relationship, given that she had not been an adult but a minor. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW 35 .     Under Article 161 of the Criminal Code (“the CC”), in conjunction with Article 130 of the same Code, criminal proceedings in respect of wilfully inflicted “minor bodily harm” may only be instituted by the victim directly in court and are not pursued by the public prosecutor. Under the Code of Criminal Procedure (“the CCP”), where criminal proceedings are instituted by the victim, he or she acts as a private prosecutor. The proceedings are discontinued if the victim fails to appear when summoned or abandons the case. The Government submitted examples of private prosecutions which had been brought before and decided by the courts (реш. от 05.06.2017 г. на ОСК по внчхд. №   56/2017 г.; реш. от 14.04.2016 г. на ОСC по внчхд. №   85/2016 г.; реш. от 25.03.2016 г. на ОСC по внчхд. №   74/2016 г.; реш. от 01.07.2019 г. на ОСК по внчхд. №   530/2018 г.). 36 .     As regards bodily harm, since February 2019 minor bodily harm inflicted “in the context of domestic violence” has been an offence subject to public prosecution (on the basis of Article 161 of the CC, read in conjunction with Article 131 § 1(5a) of the CC). 37 .     Article 93(31) of the CC specifies that the meaning of “in the context of domestic violence” is as follows:   “The offence has been committed in the context of domestic violence if it has been preceded by systematic physical, sexual or psychological abuse; the person’s placement in [a situation of] economic dependence; [or] the forceful limitation of [his or her] private life, personal freedoms and rights; and [if the offence] has been committed in respect of an older or younger relative, a current or former spouse, a person with whom one has a child, a person with whom one is living or has lived in a de facto marital relationship, or a person with whom one lives or has lived in the same household.” 38 .     Point 6 of the Additional Provisions of the Judiciary Act define “ de   facto marital cohabitation” as “the voluntary joint cohabitation of two adults with regard to whom a kinship constituting an impediment to entry into marriage does not exist, which [cohabitation] has continued for more than two years, and whereupon the persons take care of one another and of a shared household”. 39 .     Domestic violence is not, as such, a specific offence under the CC. Since February 2019 domestic violence has been an aggravating circumstance in respect of each type of bodily harm sustained by a victim (minor, moderate or grievous). It is also an aggravating circumstance in respect of a number of other offences under the CC, such as murder (Articles   115-116 of the CC), kidnapping (Article 142 of the CC), deprivation of liberty (Article   142a of the CC) and coercion (Article 143 of the CC). 40 .     The Government submitted examples of domestic case-law concerning minor bodily harm committed “in the context of domestic violence” under Article 131 § 1(5a) of the CC (see опр. № 899 от 06.11.2019 г. на РСЯ по нохд. №   1069/20019 г.; опр. от 13.07.2020 г. на СГС по внчд. №   1525/20020 г.; опр. от 21.02.2020 г. на РСБк по нохд. №   48/2020 г.; присъда от 21.01.2021 на РСБк по нохд. №   48/2020 г.; присъда от 24.02.2020 на РСПз по нохд. №   78/2020 г.; присъда от 03.06.2019 на РСНс по нохд. №   310/2019 г.; присъда от 20.02.2020 на РСРз по нохд. №   681/2019 г.; реш. от 10.03.2020 г. по внохд. №   235/2019). In those decisions, the courts consistently scrutinised the facts in accordance with the criteria described in Article 93(31) of the CC, in order to establish whether the offence being prosecuted had been committed “in the context of domestic violence”. Where no systematic violence preceding the alleged offence could be established on the basis of the evidence collected, the courts returned the case to the prosecutor and terminated the proceedings. In the cases in which the courts found the accused guilty of that offence, the sentences specifically referred to the systematic nature of the violence preceding the offence as an element decisive for the conviction. 41 .     Under Article 131 § 1(4) of the CC, read in conjunction with Article   161 of the CC, causing minor bodily harm to minors is an offence subject to private prosecution, although it attracts a heavier punishment when compared with instances where the victim is an adult. 42 .     The relevant provisions of Bulgarian law as regards moderate and grievous bodily harm have been set out in the Court’s judgment in Myumyun v. Bulgaria , no. 67258/13, § 28, 3 November 2015. Both moderate and grievous bodily harm are subject to public prosecution. 43 .     Under Article 131 § 1(7) of the CC, read in conjunction with Article   161 of the CC, causing more than once moderate or grievous bodily harm is an offence subject to public prosecution, which attracts a heavier punishment when compared with instances of one-off moderate or grievous bodily harm. 44 .     Article 49 of the CCP provides that the prosecutor may, in exceptional cases, institute criminal proceedings of his or her own motion in respect of offences subject to private prosecution, where the victim is not able to defend his or her rights owing to being in a state of helplessness or dependence on the perpetrator of the crime. The prosecutor has to do so within the time-limit set for bringing a private prosecution, which is six months from the moment the victim learns of the offence. 45.     Under section 65 of the Ministry of the Interior Act, the police may warn individuals who they have sufficient information to suspect might commit an offence of the consequences of such conduct. RELEVANT INTERNATIONAL MATERIAL and domestic reports CEDAW Convention and its interpretation 46.     The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly and ratified by Bulgaria in 1982. The implementation of the CEDAW is monitored by the Committee on the Elimination of Discrimination against Women (“the   CEDAW Committee”), which makes general recommendations to the States parties on any specific matters concerning the elimination of discrimination against women . 47.     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 “States parties have a due diligence obligation to prevent, investigate, prosecute and punish ... acts of gender-based violence” (Paragraph 19). 48.     On 26 July 2017 the CEDAW Committee updated its General Recommendation No. 19 by adopting General Recommendation No. 35 on gender-based violence against women (CEDAW/C/GC/35). As regards prosecution and punishment, the CEDAW Committee recommended that States parties, amongst other things, “ensure effective access for victims to courts and tribunals and that the authorities adequately respond to all cases of gender-based violence against women, including by applying criminal law and, as appropriate, ex officio prosecution to bring alleged perpetrators to trial in a fair, impartial, timely and expeditious manner and imposing adequate penalties ”. 49 .     In the concluding observations in their eighth periodic report on Bulgaria of 10 March 2020, the CEDAW Committee stated as follows: “21. The Committee remains concerned by the State party’s limited commitment to combating persistent gender stereotypes affecting the educational and career choices of women and girls. The Committee is particularly concerned by: (a) Increases in cases of anti-gender discourse in the public domain, public backlash in the perception of gender equality and misogynistic statements in the media, including by high-ranking politicians; (b) The promotion of a concept of traditional family values that confines women solely to the role of mothers with domestic responsibilities and the lack of a comprehensive strategy for the elimination of discriminatory stereotypes regarding the roles and responsibilities of women and men in the family and in society; ... 23. ...The Committee also remains concerned by: (a) The fact that all forms of gender-based violence, including physical, sexual, psychological and economic violence, against women and girls are not defined and criminalized in the current legislation, nor is there provision for ex officio prosecution of acts of gender-based violence against women; ... (c) The high rates at which complaints by victims of gender-based violence are withdrawn, ...” Council of Europe Committee of Ministers 50.     In Recommendation Rec(2002)5 on the protection of women against violence, the Committee of Ministers of the Council of Europe recommended,   amongst other things, that member States “have an obligation to exercise due diligence to prevent, investigate and punish acts of violence, whether those acts are perpetrated by the state or private persons, and provide protection to victims”. The recommendation also stated that member States should ensure that all victims of violence were able to institute proceedings; make provisions to ensure that criminal proceedings could be initiated by the public prosecutor; encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest; ensure, where necessary, that measures were taken to protect victims effectively against threats and possible acts of revenge; and take specific measures to ensure that children’s rights were protected during proceedings. 51.     Recommendation CM/Rec(2009)10 of the Committee of Ministers to member States on integrated national strategies for the protection of children from violence, adopted by the Committee of Ministers of the Council of Europe on 18 November 2009, emphasises that “children’s fragility and vulnerability and their dependence on adults for the[ir] growth and development call for greater investment in the prevention of violence and protection of children on the part of families, society and the State”. Commissioner for Human Rights 52.     In her report concerning her visit to   Bulgaria   in November 2019 ( CommDH(2020)8 ), published on 31 March 2020, the Commissioner for Human Rights of the Council of Europe stated, among other things: “73.     Promoting equality between women and men is a crucial tool in the prevention of violence against women and   domestic violence. The Commissioner urges the authorities to fight sexist prejudices based on the idea of [the] inferiority of women or on stereotyped roles for women and men in society, which fuel misperceptions and social tolerance of violence against women and   domestic violence   and significantly hinder, at a systemic level, the authorities’ capacity to adequately protect victims and ensure the accountability of perpetrators. She calls on the authorities to fight any discrimination against women in law enforcement and the judiciary and enhance capacity-building for all officials in the justice system to ensure a gender-sensitive approach to cases concerning violence against women and   domestic violence. She   draws attention to the Council of Europe Committee of Ministers Recommendation   CM/Rec(2019)1 on preventing and combating sexism that provides detailed guidance on addressing sexism in different fields, including in access to justice.” The Istanbul Convention 53.     The relevant provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”) were set out in Kurt v. Austria ([GC], no.   62903/15, §§ 76-86, 15 June 2021). Specifically, its Article 3(b) defines domestic violence as “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” (see Kurt , cited above, § 79). 54 .     Bulgaria signed that Convention on 21 April 2016. In January 2018 its government proposed that its Parliament ratify it, but, following a heated public controversy about some of the provisions of that Convention relating to the terms “sex” and “gender”, in February 2018 a group of members of parliament asked the Constitutional Court to determine whether that Convention was compatible with the Constitution, in a preliminary-consultation procedure provided for by Article 149 § 1 (4) of the Constitution. As a result, in March 2018 the government withdrew the ratification bill. It its judgment, delivered in July 2018 ( реш. № 13 от 27.07.2018 г. по к. д. № 3/2018 г., КС, обн., ДВ, бр. 65/2018 г. ), the Constitutional Court held, by eight votes to four, that the Istanbul Convention was incompatible with the Bulgarian Constitution. 55 .     In a resolution of 28 November 2019 ( P9_TA(2019)0080 ), the European Parliament called on Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania, Slovakia and the United Kingdom to ratify the Istanbul Convention “without delay” (point 2). Reports by the Ombudsperson and by non-governmental organisations 56 .     In her annual report for 2020, the Bulgarian Ombudsperson, referring to information provided by the Ministry of the Interior, reported that there had been 1,810 protection orders issued by the courts to women in the context of domestic violence, out of 3,057 such orders issued in total that year. The remaining protection orders were issued to children (898) and men (349). Furthermore, 25 women had been killed within an intimate relationship in 2020. 57 .     In their annual report for 2009, the Bulgarian Helsinki Committee (“BHC”), referring to information provided by the Ministry of the Interior (specifically one of its main directorates at the time - главна дирекция „Криминална Полиция“ ), reported that for the first eleven months of 2009 the courts had issued more than 1,000 protection orders in the context of domestic violence across the country. Of the victims of domestic violence in that period, 88% had been women, 10% children and 2% men. 58.     According to the findings in the 2014 annual report of the BHC, which were based on an analysis of the convictions for murder and attempted murder handed down by Bulgarian courts in the period between 2012 and 2014, in 91% of the cases in which the victims were women - the perpetrators were men. In 35% of those cases, the perpetrator was the partner or former partner of the victim; in 25% of them the perpetrator was her brother, son, grandson or another close relative; in 31% of them the perpetrator was a man known to the victim; and in 9% of them the perpetrator was a man unknown to the victim. In 19% of the judicial sentences delivered for murder or attempted murder, the courts explicitly stated that the victims had been subjected to systematic physical violence in domestic context; in 21% of those sentences, the courts stated that the victim had been either of an advanced age or suffering from serious physical or mental impairment. In two thirds of the cases the murder had taken place in the victim’s own home. 59 .     The BHC noted in its report for 2017 that during that year no institutional, organisational or legislative changes aimed at improving protection against domestic violence had been pursued in Bulgaria, and that the Government had demonstrated utter lack of interest in the matter. The BHC pointed out in that connection that, although under section 6(5) of the Protection Against Domestic Violence Act, the Government had been expected to adopt annual programmes of measures against domestic violence, the Council of Ministers had only in January 2018 adopted a programme for the prevention of and protection against domestic violence during the year 2017. In the same 2017 report, the BHC noted the absence of official statistics in respect of domestic violence in Bulgaria. 60 .     According to a report of the Animus Foundation Association, a non-governmental organisation and one of the oldest service providers for victims of violence in Bulgaria, 1,939 women and 425 men called the association’s hotline for victims of violence in 2020; in 2019 those numbers were respectively 2,068 women and 389 men, and in 2018 - 2064 women and 378 men. The EU Gender Equality Index 61 .     According to the Gender Equality Index (a tool for measuring progress of gender equality in the European Union (EU)) produced by the European Institute for Gender Equality (an agency of the EU specialising in research and data collection in respect of gender equality in the EU), Bulgaria held the worst position of all EU countries in terms of prevalence, severity and disclosure of cases of violence against women. Specifically, according to the 2017 Gender Equality Index report, the score of Bulgaria as regards violence against women was 44.2, the highest in the EU, when the average EU score was 27.2 (the higher the score, the more serious the phenomenon of violence against women). According to the same Gender Equality Index report, women in Bulgaria were victims of the most severe forms of violence (the report recorded that the percentage of women in Bulgaria who had experienced health consequences of physical and/or sexual violence in the preceding 12 months was 74% as opposed to the EU average of 31%) yet they complained about it most rarely (the percentage of women in Bulgaria who had experienced physical or sexual violence but had not told anyone was 48% compared with the EU average of 14%). Reports by the Bulgarian authorities 62 .     In two letters, respectively of 16 November 2020 and 22   February   2021, the Ministry of Interior, replying to requests for access to public information by the National Network for Children, provided the following data. In 2019, there had been 14 women victims of crimes committed in the context of domestic violence, and in the first nine months of 2020, there had been 342 women victims of domestic violence. THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 63.     The applicant complained, under Article 3 taken separately and in conjunction with Article 13 of the Convention, that she had been the victim of domestic violence and the State had failed to provide her with adequate protection. In the first place, she considered that the legal framework applicable to her complaint that she had been the victim of domestic violence was not compliant with the Convention. Specifically, she pointed out that since minor bodily harm was not an offence subject to public prosecution, her situation as a victim who was a minor and a woman who had complained of violence inflicted by her adult boyfriend was not sufficiently protected in law. In the second place, she claimed that in practice the prosecutors had failed to adequately investigate her complaints of violence. The Court, being   the master of   the characterisation to be given in law to the facts of the case (see   Radomilja and Others v. Croatia   [GC], nos.   37685/10   and   22768/12 , §§   114 and 126, 20 March 2018) is of the view that the complaint falls to be examined under Article 3 alone. That provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility The parties’ positions (a)    The Government 64.     The Government argued that the applicant had failed to exhaust domestic remedies. 65.     In particular, she had omitted to bring a private prosecution in court through her legal representative (her mother) to initiate criminal proceedings in respect of an offence of a private nature. The Government specified that in private criminal cases no preliminary investigation was carried out. The charges brought were clarified during the judicial hearing, where the court’s task was to establish the objective truth. Such private criminal proceedings constituted an effective domestic remedy, according to the Government, given that domestic courts examined the individual situation of the complainant (the alleged victim) in detail, analysed all relevant circumstances comprehensively and issued fair decisions. (b)    The applicant 66.