Case No.: 41261/17
Judgment date: 9 July 2019
The applicant suffered multiple incidents of domestic violence from her former partner (”S“) between January 2016 and March 2018, including death threats, stalking, beating (including when pregnant, resulting in the termination of her pregnancy) and abduction. S published the applicant’s private photographs, placed a GPS tracker in her purse, and damaged or took away her property and identity papers. Despite numerous reports lodged with the police and recorded injuries, the perpetrator was never prosecuted and protective measures were not taken. On at least 11 occasions, the police declined to institute criminal proceedings, including because the applicant had not lodged a complaint, no real or specific threats to her had been established, a single punch did not constitute an offence and there was no indication of a criminal offence.
In March 2018, the applicant applied to the police for state protection, which issued a decision that her request was unfounded, but no formal decision was made. On 16.4.18, the Zavolzhskiy District Court in Ulyanovsk found that the failure to make a decision was unlawful but declined to rule on whether the applicant should be granted state protection.
The applicant alleged that the Russian authorities had failed in their duty to prevent, investigate and prosecute domestic violence and that they had failed to put in place a legal framework to combat gender-based discrimination against women.
Unanimously, the Court held that the physical violence which the applicant suffered and, separately, the fear, anxiety and powerlessness which she experienced as a result of S’s coercive and controlling behaviour, amounted to inhuman treatment under Art. 3. Finding violations of Art. 3 (prohibition of inhuman treatment), the Court held:
- that Russia had not met its positive obligation to establish an adequate legal framework to ensure individuals are protected against domestic violence, noting: (i) the lack of specific legislation to address domestic violence either as a separate offence or an aggravating element of other offences; (ii) the requirement for a minimum level of severity for criminal investigation (noting that domestic violence may not result in physical injury and criticising the “repeat battery” offence); (iii) the lack of preventative or protective measures for victims; and (iv) the excessive burden on victims to bring private prosecutions;
- that the authorities’ response to the known risk to the applicant was “manifestly inadequate”, failing to take any measures to prevent recurrent violent attacks, protect the applicant, or deter or censure S; and
- that the manner in which the authorities handled the applicant’s case, including its reluctance to open criminal investigations and their failure to take effective measures against S, amounted to a failure by the State to effectively investigate the applicant’s ill-treatment, in breach of its procedural obligation.
The Court also found unanimously a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 3. Relying on statistical information, research and international reports and decisions on gender-based violence in Russia, it held that Russia’s continued failure to meet its positive obligations (failing to adopt legislation to combat domestic violence and the absence of restraining or protection orders) demonstrated its reluctance to acknowledge the seriousness and extent of domestic violence and its discriminatory effect on women, creating “a climate which was conducive to domestic violence”.
The Court awarded the applicant €20,000 in non-pecuniary damages. However, the remainder of the applicant’s claim for just satisfaction were dismissed (five votes to two).
The Court affirmed the established principle that violence against women is a form of gender-based discrimination (Opuz v. Turkey, No. 33401/02, 9.06.09), with reference to the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention).
Significantly, the Court took a gender-sensitive approach in considering whether there had been an Article 14 violation, looking at the prevalence of domestic violence in Russia and the failure of authorities to adequately respond to the specific vulnerabilities of women. It is in this context that the Osman test evaluating the state’s positive obligation to prevent and protect, notably in preventing recurring violence, was applied: [t]he risk of a real and immediate threat must be assessed, taking due account of the particular context of domestic violence” (Osman v. the United Kingdom No. 23452/94, 28.10.98, para 86). This significantly shifted the burden of proof from the victim to the state.
The Court did not however go as far as the separate opinion of Judge Pinto de Albuquerque, endorsed by Judges Dedov and Serghides, who considered “immediacy” should not be required in the domestic violence context, arguing that “[this] creates the risk that victims of domestic violence will fail to be protected since the positive obligation on the authorities to act would be triggered too late” (para 12) (see also Judge Pinto de Albuquerque’s concurring opinion in Valiuliene v Lithuania, No. 33234/07, 26.3.13). Further, the judges considered that the applicant’s ordeal in this case amounted to torture (not inhuman treatment, as found by the Court), relying, inter alia, on General Comment 2 of the UN Committee against Torture and the UN Special Rapporteur on Torture.
Whilst the case was the first domestic violence judgment against Russia after changes to domestic law reduced criminal sanctions for domestic violence, the lack of Article 46 redress missed an opportunity to address the deficiencies in Russian law (Judge Pinto de Albuquerque identified six specific substantive and procedural law reforms which he said should flow from execution of the judgment).