CEDH · CASELAW;CLIN;ENG — 9 juillet 2019

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Russia - 41261/17 Judgment 9.7.2019 [Section III] Article 3 Degrading treatment Inhuman treatment Failure of authorities to take adequate measures to protect victim of domestic violence: violation Article 14 Discrimination Absence of legislation defining domestic violence and dealing with it at systemic level: violation Facts – 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 failed to put in place a legal framework to combat gender-based discrimination against women. Law Article 3: The violence suffered by the applicant at the hands of her former partner had reached the required level of severity under Article   3. The feelings of fear, anxiety and powerlessness that the applicant must have experienced in connection with his controlling and coercive behaviour were sufficiently serious as to amount to inhuman treatment within the meaning of this provision.The Court therefore had to examine whether the State authorities had discharged their interlinked positive obligations to ensure that individuals within their jurisdiction were protected against all forms of ill-treatment, including where such treatment had been administered by private individuals. (a)     The obligation to establish and apply a legal framework – Russia had not enacted specific legislation to address violence occurring within the family context. Neither a law on domestic violence nor any other similar laws had ever been adopted. The concept of “domestic violence” or any equivalent thereof was not defined or mentioned in any form in the Russian legislation. Domestic violence was not a separate offence under either the Criminal Code or the Code of Administrative Offences. Nor had it been criminalised as an aggravating form of any other offence. The Russian Criminal Code made no distinction between domestic violence and other forms of violence against the person, dealing with it through provisions on causing harm to a person’s health or other related provisions, such as murder, death threats or rape. The existing criminal-law provisions were not capable of adequately capturing the offence of domestic violence. Following a series of legislative amendments, assault on family members was now considered a criminal offence only if committed for a second time within twelve months or if it had resulted in at least “minor bodily harm”. The Court had previously found that requiring injuries to be of a certain degree of severity as a condition precedent for initiating a criminal investigation undermined the efficiency of the protective measures in question, because domestic violence could take many forms, some of which did not result in physical injury – such as psychological or economic abuse or controlling or coercive behaviour. Moreover, the provisions on “repeat battery” would not have afforded the applicant any protection in the situation where attacks on her in 2016 had been followed by a new wave of threats and assaults more than twelve months later, in 2018. The Court reiterated that domestic violence could occur even as a result of one single incident. Furthermore, Russian law left the prosecution of charges of “minor harm to health” and “repeat battery” to the private initiative of the victim. The effective protection of the Convention right to physical integrity did not require public prosecution in all cases of attacks by private individuals. Within the context of domestic violence, however, the possibility of bringing private prosecution proceedings was not sufficient, as such proceedings obviously required time and did not serve to prevent the recurrence of similar incidents. A private prosecution put an excessive burden on the victim of domestic violence, shifting onto her the responsibility for collecting evidence capable of establishing the abuser’s guilt to the criminal standard of proof. The collection of evidence presented inherent challenges in cases where abuse had occurred in a private setting without any witnesses present, and sometimes left no tangible marks. That was not an easy task even for trained law-enforcement officials, but the challenge became insurmountable for a victim who was expected to collect evidence on her own while continuing to live under the same roof, being financially dependent on, and fearing reprisals from the perpetrator. Moreover, even if a trial resulted in a guilty verdict, a victim could not be provided with the necessary protection, such as protective or restraining orders, owing to the absence of such measures under Russian legislation. Russian law made no exception to the rule that the initiation and pursuance of proceedings in respect of such offences were entirely dependent on the victim’s initiative and determination. The prosecuting authorities should have been able to pursue the proceedings as a matter of public interest, regardless of a victim’s withdrawal of complaints. The Russian authorities had not given heed to the Council of Europe’s Recommendation Rec(2002)5 , which required member States to make provision to ensure that criminal proceedings could be instituted by a public prosecutor and that the victims should be given effective protection during such proceedings against threats and possible acts of revenge. The authorities’ failure to provide for the public prosecution of domestic-violence charges had been consistently criticised by the CEDAW Committee . The Russian legal framework – which did not define domestic violence, whether as a separate offence or an aggravating element of other offences, and established a minimum threshold of gravity of injuries required for launching public prosecution – fell short of the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for victims. (b)     The obligation to prevent the known risk of ill-treatment – The risk of a real and immediate threat had to be assessed, taking due account of the particular context of domestic violence. In such a situation, it was not only a question of an obligation to afford general protection to society, but above all to take account of the recurrence of successive episodes of violence within a family. The applicant had informed the authorities of her former partner’s violence on numerous occasions. She had informed the authorities of the threats of violence made, and actual violence perpetrated, and supplied medical evidence corroborating her allegations. Therefore, officials had been aware, or ought to have been aware, of the violence to which the applicant had been subjected and of the real and immediate risk that violence might recur. Given those circumstances, the authorities had had an obligation to take all reasonable measures for her protection. In a large majority of Council of Europe member States, victims of domestic violence were able to apply for immediate measures of protection. Such measures were variously known as “restraining orders”, “protection orders” or “safety orders”, and they aimed to forestall the recurrence of domestic violence and to safeguard the victim of such violence by typically requiring the offender to leave the shared residence and to abstain from approaching or contacting the victim. Russia remained among only a few member States whose national legislation did not provide victims of domestic violence with any comparable measures of protection. It could not be said that the Russian authorities had made any genuine attempts to prevent the recurrence of violent attacks against the applicant. Her repeated reports of physical attacks, kidnapping and assault had not led to any measures being taken. Despite the gravity of the acts, the authorities had merely obtained explanations from her former partner and concluded that it had been a private matter between him and the applicant. A criminal case had been opened for the first time more than two years after the first reported assault. It had not related to any violent act but to the much lesser offence of interference with the applicant’s private life. Even though the institution of criminal proceedings had allowed the applicant to lodge an application for State protection measures, she had not received any formal decision on her application, to which she had been entitled under the law. An opinion issued by the regional police had pronounced the application unfounded, describing the series of domestic-violence incidents as mere ill feeling between her and her former partner which were not worthy of State intervention. The response of the Russian authorities – who had been made aware of the risk of recurrent violence on the part of the applicant’s former partner – had been manifestly inadequate, given the gravity of the offences in question. They had not taken any measure to protect the applicant or to censure her former partner’s conduct. They had remained passive in the face of the serious risk of ill-treatment to the applicant and, through their inaction and failure to take measures of deterrence, had allowed her former partner to continue threatening, harassing and assaulting her without hindrance and with impunity. (c)     The obligation to carry out an effective investigation into allegations of ill-treatment – Special diligence was required in dealing with domestic-violence cases, and the specific nature of the domestic violence had to be taken into account in the course of the domestic proceedings. Since 1   January 2016 the applicant had reported to the police at least seven episodes of recurrent serious violence or threats of violence by her former partner and submitted evidence – including medical reports and statements by witnesses – corroborating her allegations. Her reports had amounted to an arguable claim of ill-treatment, triggering the obligation to carry out an investigation satisfying the requirements of Article   3. Responding to the applicant’s complaints, the police had carried out a series of short “pre-investigation inquiries”, which invariably concluded with a refusal to institute criminal proceedings on the ground that no prosecutable offence had been committed. Supervising prosecutors had set aside some of the decisions concluding the pre-investigation inquiries, apparently finding that the applicant’s allegations were sufficiently serious as to warrant additional examination of her grievances. However, the police officers had not taken any additional investigative steps and had issued further decisions declining to initiate criminal proceedings. Over more than two years of recurring harassment the authorities had never once opened a criminal investigation into the use or threat of violence against the applicant. The only criminal case that had been instituted did not relate to any violent acts but to the relatively minor offence of publishing photographs of the applicant. When confronted with credible allegations of ill-treatment, the authorities had had a duty to open a criminal case; a “pre-investigation inquiry” alone had not met the requirement for an effective investigation under Article 3. That preliminary stage had too restricted a scope and could not lead to the trial and punishment of the perpetrator, since the opening of a criminal case and a criminal investigation were prerequisites for bringing charges that might then be examined by a court. A refusal to open a criminal investigation into credible allegations of serious ill-treatment was indicative of the State’s failure to comply with its procedural obligation under Article 3. Police officers’ reluctance to initiate and carry out a criminal investigation in a prompt and diligent fashion had led to a loss of time and undermined their ability to secure evidence concerning the domestic violence. Even when the applicant had presented visible injuries, a medical assessment had not been scheduled immediately after the incident. The police officers had employed a variety of tactics that enabled them to dispose of each inquiry in the shortest possible time. The first such tactic consisted of talking the perpetrator into making amends and repairing the damage caused. Alternatively, the police officers had sought to trivialise the events that the applicant had reported to them. Confronted with indications of prosecutable offences, such as recorded injuries or text messages containing death threats, the police had raised the bar for evidence required to launch criminal proceedings. They had claimed that proof of more than one blow was needed to establish the offence of battery and threats of death had to be “real and specific” in order to be prosecutable. They had not cited any domestic authority or judicial practice supporting such an interpretation of the criminal-law provisions. In view of the manner in which the authorities had handled the case – notably the authorities’ reluctance to open a criminal investigation into the applicant’s credible claims of ill-treatment and their failure to take effective measures against her former partner, ensuring his punishment under the applicable legal provisions – the State had failed to discharge its duty to investigate the ill-treatment. Conclusion : violation (unanimously). Article 14 in conjunction with Article   3: Once a large-scale structural bias had been shown to exist, an applicant did not need to prove that she had also been a victim of individual prejudice. On the strength of evidence submitted by the applicant and information from domestic and international sources, there existed prima facie indications that domestic violence disproportionately affected women in Russia. Despite the high prevalence of domestic violence, the Russian authorities had not adopted any legislation capable of addressing the problem and offering protection to women who had been disproportionately affected by it. More than forty draft laws had been developed in the previous twenty years but none had been enacted. The existing criminal-law provisions were insufficient to offer protection against many forms of violence and discrimination against women, such as harassment, stalking, coercive behaviour, psychological or economic abuse, or a recurrence of similar incidents protracted over a period of time. The absence of any form of legislation defining the phenomenon of domestic violence and dealing with it on a systemic level distinguished the applicant’s case from cases against other member States in which such legislation had already been adopted but had malfunctioned for various reasons. The continued failure to adopt legislation to combat domestic violence and the absence of any form of restraining or protection orders clearly demonstrated that the authorities’ actions in the applicant’s case were not a simple failure or delay in dealing with violence against the applicant, but flowed from their reluctance to acknowledge the seriousness and extent of the problem of domestic violence in Russia and its discriminatory effect on women. By tolerating for many years a climate which was conducive to domestic violence, the Russian authorities had failed to create conditions for substantive gender equality that would enable women to live free from fear of ill-treatment or attacks on their physical integrity and to benefit from the equal protection of the law. Conclusion : violation (unanimously). Article 41: EUR 20,000 in respect of non-pecuniary damage. (See also Valiulienė v. Lithuania , 33234/07, 26   March 2013, Information Note 161 ; Eremia v. the Republic of Moldova , 3564/11, 28   March 2013, Information Note 163 ; T.M. and C.M. v. the Republic of Moldova , 26608/11 , 28   January 2014; Talpis v. Italy , 41237/14, 2   March 2017, Information Note 205 ; Bălșan v. Romania, 49645/09, 23   May 2017, Information Note 207 ; D.H. and Others v. the Czech Republic [GC], 57325/00, 13   November 2007, Information Note 102 ; Opuz v. Turkey , 33401/02, 9   June 2009, Information Note 120 ; and A   v. Croatia , 55164/08, 14   October 2010, Information Note 134 . See also the Factsheet on Domestic violence and the Convention on the Elimination of All Forms of Violence against Women )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes