CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 février 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sAB51C47C { margin-top:14pt; margin-left:27.94pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.26pt; font-family:Arial; font-weight:bold } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sD8BF637E { margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .s35B69855 { margin-top:24pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } Communicated on 10 February 2020 Published on 2 March 2020   FIFTH SECTION Application no. 9077/18 Y and Others against Bulgaria lodged on 15 February 2018 STATEMENT OF FACTS 1.     The applicants are Ms Y, born in 1948 and living in Sofia, and her two granddaughters, Ms X and Ms Z, born in 2007 and 2012 respectively and also living in Sofia. In October 2017 Ms Y was appointed as the legal guardian of her two granddaughters. 2.     The applicants are represented by Ms A. Kachaunova, a lawyer practising in Sofia and working with the Bulgarian Helsinki Committee. 3.     The facts of the case, as submitted by the applicants and as appearing from the materials submitted by them and by judgments given by the Bulgarian criminal courts in relation to the case, may be summarised as follows. Introduction 4.     On 18 August 2017 Mrs V, born in 1975, daughter of the first applicant and mother of the second and third applicants, was shot dead in a café in Sofia by her husband, Mr V, born in 1953, with whom she had de   facto separated in 2014. Mrs V’s marriage 5 .     Mrs V and Mr V married in April 2009. For Mr V, this was a second marriage. The couple had two daughters – the second and third applicants – born in 2007 and 2012 respectively. In 2014 the spouses fell out with each other and stopped living together. 6 .     The two daughters remained with Mrs V, and all three of them lived with her mother – the first applicant – in the first applicant’s flat. Complains by Mrs V to the authorities in the run-up to the shooting on 18 August 2017 7.     During a period of approximately two years before the shooting on   18   August 2017 Mrs V several times complained to the authorities of threatening conduct by Mr V. Incidents in November 2016 8 .     Mrs V’s first complaint to the police was made on 14 November 2016, when she recorded in a deposition that on that date Mr V had probably slashed the tyres of her car, had made death threats against her several days earlier, on 4 November, during a row in her home in front of her mother, and owned a handgun. She also said that on the morning following the row, 5 November, the exhaust pipe of her car had been filled with polyurethane foam, which she also suspected had been done by Mr V. The allegations were confirmed in a deposition by a friend of Mrs V. 9 .     The Sofia police checked Mrs V’s car and noted down her allegations against Mr V. A little over a month later, on 22 December 2016, they asked their colleagues in Yambol, where Mr V was working and living at that time, to answer a few questions about the car-slashing incident. On   10   January 2017 the Yambol police wrote back, saying that Mr V had stated that the car had been purchased by him, and that he had not been in Sofia at the time when its tyres had been slashed and had nothing to do with that. Based on that and on the absence of any eyewitness or surveillance-camera evidence with respect to the incident, on 16 January 2017 the Sofia police proposed that no criminal proceedings be opened, saying that although the incident formally covered the elements of a criminal offence, it was too insignificant to amount to one. 10 .     On 16 March 2017 the Sofia district prosecutor’s office agreed with the proposal and refused to open criminal proceedings against Mr V. Incident on 1 January 2017 11 .     In the meantime, on 1 January 2017 Mr V came to the first applicant’s flat to take out the second and third applicants for a walk because it was his birthday. Mrs V was not home. According to the first applicant, Mr V got into a row with her and acted aggressively, pulling the children away and pushing her back. The first applicant called the police and two officers came to the flat. They later reported that they had not witnessed a row but had nevertheless admonished the first applicant and Mr   V to act lawfully. Mrs V came home shortly after that and allowed Mr V to take the children out, apparently because she saw that he was accompanied by his brother, whom she trusted. Chase on 13 February 2017 12 .     In the late evening of 13 February 2017 Mrs V complained to the police that, following a row between them, Mr V had chased her, first by car and then on foot, insulting and threatening her. She said that she feared for her life and was scared of leaving her home alone or with her children. 13 .     In a deposition made the following day, 14 February 2017, Mrs V explained that she had met with Mr V in his car at his request, to discuss what to do with their daughters. In response to her statement that she wished to divorce him, he had insulted and threatened her. She had got out of the car at a red light, but he had chased her, first with the car and then on foot. Since this had not been his first display of aggression towards her, the children and her mother, she had thought that he might physically assault her. She had managed to outrun him and had called a friend living in a nearby building, and he had given up the chase. 14 .     The same day Mrs V’s friend also made a deposition in which she confirmed that she had received a call from Mrs V, who had sounded very frightened, and that she had still been frightened when the friend had gone to her home shortly after that. The friend also relayed Mrs V’s story about the chase, as heard by her in the course of that visit, and expressed fear about Mrs V’s life. 15 .     For his part, when approached by the police in relation to these allegations, Mr V conceded that he had met with his wife on 13 February 2017, but denied having threatened her physically. On 23 February 2017 the police nevertheless warned Mr V not to make threats or carry out acts of violence against his wife. 16 .     On 7 March 2017 the police, describing the information about the incident and about the earlier incidents on 14 November 2016 and 1 January 2017 (see paragraphs 8 and 11 above), recommended that no charges be brought against Mr V. On 22 March 2017 the Sofia district prosecutor’s office followed the proposal and refused to open criminal proceedings in relation to the chasing incident on 13 February 2017. It noted that making insults and threats were privately prosecutable offences (see paragraph 41 below), and that there was no evidence that Mr V had breached the terms of a protection order contrary to Article 296 § 1 of the Criminal Code (see paragraph 38 below), since the incident had taken place four days before the issuing of an interim protection order against him (see paragraph 18 below). Protection order proceedings 17 .     A few days after the incident on 13 February 2017 (see paragraphs   12-15 above), Mrs V brought protection order proceedings against Mr V in relation to it (see paragraphs 33-36 below). 18 .     On 17 February 2017 the Sofia District Court issued an interim protection order, barring Mr V from coming nearer than a hundred metres from his wife until the final disposal of the case. It found, without giving details in that respect, that there was enough evidence of a direct and immediate threat to Mrs V’s life and health. A copy of the order was sent to the police, who received it on 27 February 2017. 19 .     On 15 June 2017 the Sofia District Court, which heard the case in the absence of Mr V – who did not appear in spite of being duly summoned   – issued a final protection order against him, enjoining him under section 5(1) of the Protection Against Domestic Violence Act 2005 (see paragraph 34 below) to refrain from acts of domestic violence against his wife, and barring him from coming nearer than a hundred metres from her and her home and places of leisure for a period of one year. The court also gave Mr V the minimum possible fine: 200 Bulgarian levs (BGN) (equivalent to 102 euros (EUR)) (see paragraph 35 below). It did so on the basis of the incident on 13 February 2017 (see paragraphs 12-15 above). It found that on that date Mr V had insulted and threatened Mrs V. The court went on to say that, given the purely psychological nature of the violence, the combination of measures ordered by it seemed sufficient to deter Mr V from further acts of domestic violence and that it was not necessary to resort to harsher measures or give him a bigger fine. Incident on 17 August 2017 20 .     Just before 7 p.m. on 17 August 2017 Mrs V went to a police station and made a written complaint. She stated that when she had been driving home after leaving work at 5 p.m., she had seen Mr V following her with his car. She stated that out of fear she had called a friend and had gone to see her, and that when she had parked her car to pick up her friend Mr V had parked his car one car down from hers and had got out of the vehicle and come to about ten metres from her, in breach of the terms of the protection order against him (see paragraph 19 above). Mrs V’s friend had then got into her car with her and when they had driven away, Mr V had continued driving behind them. The friend had then called the emergency number 112 and Mrs V had spoken with the operator. They had then lost Mr   V from sight and had gone directly to the police station. Mrs V asked the police to take preventive measures before Mr V would do “something fatal” to her. 21 .     In a deposition to the police made at about the same time, Mrs V’s friend confirmed the story, adding that Mr V had worn a baseball cap and black glasses, in an apparent effort to conceal his identity, and that when seeing them drive away after the short stop, he had feverishly tried to find something in his car. 22 .     The 112 call apparently did not result in any action. According to the applicants, who cite Mrs V’s friend, the operator told Mrs V that there was nothing he could do and that she and her friend should attempt themselves to apprehend Mr V. 23 .     The police registered the written complaint, but apparently did not take any immediate action on it. The officer on duty told Mrs V and her friend that they should check after 2 p.m. the following day which officer had been assigned to the case. 24 .     Just before 12 noon the next day, 18 August 2017, Mrs V, accompanied by her friend, lodged a nearly identical complaint with the Sofia district prosecutor’s office, specifying that Mr V owned a handgun and that she feared for her life. The friend made a deposition in which she confirmed those points. Mrs V’s shooting on 18 August 2017 25 .     After coming out of the prosecutor’s office, at about 1.50 p.m. Mrs   V and her friend went to a neighbourhood café. Shortly before 3 p.m. Mr V, who had apparently spotted them, approached and got into a verbal exchange with Mrs V. He then made several tos and fros. When he again approached the table at which Mrs V and her friend were sitting, Mrs V tried to call 112. Mr V started shouting at her, pulled out a handgun and shot her five times. She died on the spot. After that, Mr V went to a police station to surrender. Criminal proceedings against Mr V 26 .     In October 2017 Mr V was put on trial for aggravated murder and unlawful possession of a firearm. On 5 January 2018 the Sofia City Court convicted him of aggravated murder and unlawful possession of a firearm and sentenced him to a term of imprisonment of thirteen years and four months, to be served under the “severe regime”. The court also ordered him to pay each of his daughters, who had brought civil-party claims against him, BGN 250,000 (EUR 127,822), plus interest, in non-pecuniary damages (see прис. № 1 по н. о. х. д. № 5051/2017 г., СГС). 27 .     The court noted, in particular, that Mr V had been granted a handgun licence in 1998, and that this licence had been renewed in 1999, 2000 and 2003 but had expired in 2006, which meant that for the whole period after that Mr V’s possession of his handgun had been illegal. 28 .     The court also said that it found credible the evidence of Mrs V’s friend about the earlier threats against her, and that Mrs V’s complaints to the police and the prosecuting authorities and the protection order issued in her favour were all evidence that she had had serious grounds to fear Mr V. 29 .     The first applicant, acting on behalf of the second and third applicants, appealed against the sentence, asking the Sofia Court of Appeal to increase it to life imprisonment. On 10 May 2018 that court upheld the entirety of the lower court’s judgment (see реш. № 190 от 10.05.2018 г. по в. н. о. х. д. № 240/2018 г., САС). 30 .     Mr V appealed on points of law, challenging in particular the decision in relation to his prison regime. On 19 October 2018 the Supreme Court of Cassation held that he should serve his sentence under the “general regime”, which was more lenient. The court upheld the lower courts’ judgments in all other respects, save for the legal characterisation of one of the aggravating elements – relating to the nature of the murder weapon – of the offence (see реш. № 205 от 19.10.2018 г. по н. д. № 778/2018 г., ВКС, II   н. о.). Relevant legal framework Protection Against Domestic Violence Act 2005 31 .     Protection from domestic violence in Bulgaria is chiefly governed by the Protection Against Domestic Violence Act 2005, in force since March 2005 and amended several times after that: in December 2009, December 2010, July 2015 and March 2019. 32 .     Section 2 of the Act, as amended in December 2009, defines “domestic violence” as “any act of physical, sexual, psychological, emotional or economic violence, as well as any attempt [to carry out] such violence, [or] coerced restrictions on the private life, personal liberty or personal rights of people who are in kinship or are or have been in a family relationship or been de facto spouses”. Protection order proceedings 33 .     In cases of domestic violence the victim may seek a protection order (sections 4(1) and 8(1)). He or she must bring the application within one month of the act(s) said to amount to such violence (section 10(1)). The application must be heard not more than a month after its receipt by the court (sections 12(1) and 18(4)). The proceedings unfold at first instance before the district courts, and on appeal before the regional courts, whose decisions are final (sections 7 and 17(1) and (6)). The appeal has no suspensive effect (section 17(3)). 34 .     By section 5(1) and (2), as amended in December 2009, a court to which an application for protection against domestic violence is made may: (a) enjoin the perpetrator to refrain from domestic violence; (b) remove the perpetrator from the family home for a period of time (up to eighteen months); (c) bar the perpetrator from approaching the victim, his or her home, workplace, social-gathering and leisure places, under conditions and for a period fixed by the court (up to eighteen months); (d) provisionally place the couple’s children, if any, with the victim under conditions and for a period fixed by the court (up to eighteen months), unless that goes against the children’s interest; (e) order the perpetrator to attend specialised programmes; and (f) direct the victim(s) to rehabilitation programmes. The court may opt for a combination of any of those measures (section 16(1)). 35 .     In addition to that, the court must fine the perpetrator between BGN   200 (EUR 102) and BGN 1,000 (EUR 511) (section 5(4)). 36 .     If the application contains indications of a direct and immediate risk to victim’s life or health, the court must issue, without notice to the defendant, an interim protection order. It must do so within twenty-four hours of receiving the application (section 18(1)). The interim order is not amenable to appeal and remains in effect for the duration of the proceedings (section 19). Enforcement of interim and final protection orders 37 .     Copies of all interim and final protection orders must be sent to the local police (sections 16(3) and 18(2) of the 2005 Act), who are in charge of ensuing compliance with them (section 21(1) of the Act and regulation 6 of the 2010 regulations for its application). If the defendant breaches the terms of the order, the police officer who establishes the breach must arrest him or her and inform immediately the prosecuting authorities (section 21(3)). The police must act upon being notified by the victim or by anyone who has spotted the breach. If their enquiries confirm the breach, they must take the steps required under the Code of Criminal Procedure (regulation 7(1) and   (2)). If the breach does not amount to an offence, the police must caution those concerned not to commit further breaches (regulation 7(3)). 38 .     Article 296 § 1 of the Criminal Code makes it an offence (wilfully) not to comply with a protection order. The penalty on conviction is up to three years’ imprisonment or a fine of up to BGN 5,000 (EUR 2,556). Other avenues of protection from domestic violence 39 .     Section 4(2) of the 2005 Act, as amended in December 2009, provides that if there are indications that the victim’s life or health are at risk, he or she may, apart from applying for a protection order, also ask the police to take measures under the Ministry of Internal Affairs Act 2014. Such measures may include entering and inspecting premises with a view to, inter alia , providing immediate assistance to people whose life, health or personal liberty are at risk (section 83(1)(3) of the 2014 Act). The earlier versions of section 4(2) of the 2005 Act referred specifically to that type of measure. 40 .     Article 67 § 1 of the Code of Criminal Procedure provides that a first-instance court dealing with a criminal case may, at the request of the public prosecutor or the victim, bar the accused from (a) coming near the victim; (b) contacting the victim in any way, including by telephone, mail, email or fax; or (c) go to inhabited areas, regions or places where the victim resides or which the victim visits. The court must hear the application at a public hearing in the presence of the public prosecutor and the parties, and rule by means of a final decision (Article 67 § 3). The prohibition remains in place until the end of the proceedings (Article 67 § 4). Relevant criminal offences Making threats 41 .     Article 144 § 1 of the Criminal Code makes it an offence to threaten someone else with an offence against his or her person or property, or the persons or property of relatives, provided that this threat is capable of causing a well-founded fear of its realisation. By Article 161 § 1 of the Code, this is a privately prosecutable offence. 42 .     By Article 144 § 3, as amended in February 2019, the offence becomes aggravated if committed “in conditions of domestic violence”. By Article 161 § 1, as amended also in February 2019, in that case the offence is publicly prosecutable. 43 .     Article 93, point 31 of the Code, added in February 2019, defines an offence committed “in conditions of domestic violence” as an offence preceded by systemic physical, sexual or psychological violence; by placing in economic dependency; or by coerced restrictions on the private life, personal   liberty or personal rights of, inter alia , an (ex-)spouse or a de facto (ex-)spouse. 44 .     The February 2019 amendments were part of an overhaul of the Criminal Code meant, according to the explanatory notes drawn up by the members of Parliament who introduced the amendments in October 2018, to strengthen and provide new tools in the fight against domestic violence and violence against women. Stalking 45 .     Article 144a § 1 of the Criminal Code, added in February 2019 as part of the same legislative package (see paragraphs 42-44 above), makes it an offence systematically to follow someone and thus to arouse in him or her a well-founded fear for his or her or his or her relatives’ life or health. Article   144a § 2 provides that “following” within the meaning of the first paragraph includes any conduct of a threatening character against a specific individual, which may consist in chasing that individual, making him or her realise that he or she is under surveillance, or getting into unwanted communication with him or her. By Article 161 § 2, as amended in February 2019, the offence is publicly prosecutable, but only on the basis of a complaint by the victim to the prosecuting authorities. 46 .     By Article 144a § 3, the offence becomes aggravated if committed “in conditions of domestic violence” (see paragraph 43 above). COMPLAINTS 47.     The applicants complain under Articles 2 and 13 of the Convention that the authorities did not protect effectively Mrs V’s life and that there was no effective remedy in that respect. They submit that this was due to both operational failures by the authorities and to the insufficient legal framework in this domain, in particular the lack, at the time, of a criminalisation of stalking, and also Bulgaria’s refusal to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence (“Istanbul Convention”; CETS No. 210). 48.     The applicants further complain under Article 14 of the Convention read in conjunction with Article 2 that the failure of the authorities to take effective measures with a view to averting the risk to Mrs V’s life was not simply an isolated occurrence, to be explained by factors specific to her case, but was due to her being a woman and to the authorities’ general complacency to violence against women. QUESTIONS TO THE PARTIES 1.     Did the authorities comply with their positive obligation under Article 2 of the Convention to protect the life of Mrs V from her husband?   2.     Do the facts of the case disclose discrimination against Mrs V on the basis of her sex, in breach of Article 14 of the Convention?