The ECHR judgment of July 9, 2019 in the case of Volodina v. Russia (application No. 41261/17).
In 2017, the applicant was assisted in preparing the application. Subsequently, the application was communicated to the Russian Federation.
In the case, an application was successfully considered regarding the failure by state authorities to prevent and investigate crimes related to domestic violence, as well as to create a legal framework to combat gender discrimination against women. The case has violated the requirements of Article 14 in conjunction with Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant alleged that the Government had failed to fulfill their obligation to prevent, investigate and prosecute domestic violence to which she had been subjected by her former partner, and that they had not created a legal framework to combat gender discrimination against women.
QUESTIONS OF LAW
Regarding compliance with article 3 of the Convention. The violence suffered by the applicant reached the level of severity required by Article 3 of the Convention. The feelings of fear, anxiety and helplessness that the applicant should have experienced in connection with the controlling and coercive behavior of her partner were serious enough to constitute inhuman treatment within the meaning of this Article of the Convention. Consequently, the Court had to verify that the respondent Government had complied with the positive obligation associated with this to ensure that persons under their jurisdiction were protected from all forms of inhuman treatment, including in cases where they had been subjected to such treatment by a private person.
(a) Obligation to adopt and apply relevant legislation. In the Russian Federation, special legislation has not been adopted on the problem of violence that occurs in the context of family life. Neither domestic violence law nor other similar laws have been enacted. The term “domestic violence” or any similar term has not been defined or mentioned in any regulatory acts. Domestic violence was not a separate crime either in accordance with the Criminal Code of the Russian Federation or in accordance with the Code of Administrative Offenses of the Russian Federation. The Criminal Code of the Russian Federation did not distinguish between domestic violence and other forms of violence, and domestic violence was considered in the context of injuries or other related articles, such as murder, death threats or rape.
The current criminal law was unable to adequately cover the crime of domestic violence. After making a number of changes to the legislation of the Russian Federation, an attack on family members was considered a crime only if it was committed repeatedly within a year or if it led to at least “causing slight harm to health”. The Court has previously found that the requirement of personal injuries of a certain severity as a condition for initiating a criminal case undermined the effectiveness of the protective measures, as domestic violence could be expressed in many forms, and some of them did not result in bodily harm, for example, psychological or economic violence , controlling or coercive behavior. Moreover, the “repeated beatings” provisions would not have allowed the applicant to be protected in her situation, since the attacks on her in 2016 were followed by a new series of threats and attacks more than a year later, in 2018. The Court reiterates that domestic violence can occur even as a result of a single incident.
Moreover, according to the legislation of the Russian Federation, the criminal prosecution of cases of “causing slight bodily harm” and “repeated beatings” was a private prosecution. The effective protection of the physical right guaranteed by the Convention did not require public prosecution in all cases of attacks by private individuals. However, in the context of domestic violence, the possibility of instituting criminal proceedings against a private prosecution was not sufficient, since such proceedings obviously required time and did not serve the purpose of preventing the commission of similar acts. A private prosecution imposed an undue burden on the victim of domestic violence, taking responsibility for collecting evidence capable of establishing the guilt of the attacker in accordance with the criminal law standard of proof. The collection of evidence was inherently difficult in cases where the attacks took place in a private home environment without witnesses, and sometimes there were no visible signs of beatings. This was a difficult task even for law enforcement officers who had undergone special training, and for the victim, who had to collect evidence independently, while continuing to live with the attacker, being financially dependent on him and fearing his revenge, this was an impossible task at all. In addition, even if the process culminated in a conviction, the victim could not be provided with the necessary protection by issuing protective or restraining orders due to the fact that such measures were not provided for by the legislation of the Russian Federation.
The legislation of the Russian Federation did not provide for exceptions to the rule that the initiation of a criminal case and the continuation of proceedings on it entirely depended on the victim's initiative and determination. The prosecution authorities should be able to proceed with the case as a matter of public interest, regardless of whether the victim's statement was withdrawn. The authorities of the Russian Federation did not take into account Council of Europe Recommendation N Rec (2002) 5, which required member states to ensure that proceedings are instituted by the prosecutor and that victims are provided with effective protection against threats and possible revenge during this proceedings. The fact that the authorities did not provide for the possibility of public prosecution in cases of domestic violence was constantly criticized by the Committee on the Elimination of All Forms of Discrimination against Women.
The legal framework of the Russian Federation, in which there was no definition of the concept of “domestic violence” as a separate crime or aggravating circumstance and a minimum level of severity of bodily harm was established to initiate a criminal case under public prosecution, did not meet the requirements inherent in the positive obligation of the state to create and the effective implementation of the system of punishment of all forms of domestic violence and the provision of adequate guarantees to victims.
(b) The obligation to prevent a known risk of ill-treatment. The risk of a real and immediate threat was to be assessed taking into account the specific context of domestic violence. In such a situation, it was not only an obligation to provide a general protection system for society, but above all an obligation to take into account the occurrence of recurring episodes of domestic violence.
The applicant reported to the authorities many times about violence by her former partner. She notified the authorities both about the threats of violence and about the facts of real violence and presented medical evidence in support of her arguments. Thus, the authorities knew or should have known about the violence to which the applicant was subjected and the real and immediate risk that it could happen again. In the circumstances, the respondent Government had an obligation to take all reasonable measures to protect the applicant.
In the vast majority of Council of Europe member states, victims of domestic violence are able to seek immediate protection. These measures are known under various names, for example, “restraining orders”, “protective orders” or “security orders”, and serve to prevent the resumption of domestic violence, usually requiring the offender to leave the place of joint residence, not to approach victim and do not contact her. The Russian Federation remains among the few states whose legislation did not provide victims of domestic violence with any such protection measures.
This is not to say that the authorities of the Russian Federation really made any attempts to prevent the recurrence of violent attacks on the applicant. Her repeated reports of physical attacks, abductions and violence did not lead to any action being taken. Despite the seriousness of the circumstances of the case, the authorities only received explanations from her former partner and concluded that it was a private matter between him and the applicant. The criminal case was first opened more than two years after the first report of the attack. It did not concern any violent acts, but a much less serious crime of interfering in the applicant's personal life. Despite the fact that the initiation of a criminal case allowed the applicant to apply for state protection measures, she did not receive any decision on her application, although such a right was assigned to her by law. In a decision issued by the police, the application was declared unfounded, and a number of incidents of domestic violence were described only as a manifestation of hostility between the applicant and her partner, which did not deserve the attention of the authorities.
The reaction of the authorities, who were aware of the risk of repeated violence by the applicant’s former partner, was clearly inadequate given the gravity of the offenses in question. They did not take any measures to protect the applicant or to terminate her former partner. They remained passive in the face of a serious risk of ill-treatment of the applicant and, as a result of inaction and lack of deterrent measures, allowed the applicant’s former partner to continue threatening, harassing and attacking her without hindrance and impunity.
(c) The obligation to conduct an effective investigation into the alleged ill-treatment. The authorities were required to exercise particular care when considering domestic violence cases and to take into account the special nature of domestic violence during the proceedings. On 1 January 2016, the applicant informed the police of at least seven episodes of repeated domestic violence or threats of violence from her former partner and provided evidence of her allegations, including medical reports and witness statements. Her allegations constituted a demonstrable allegation of ill-treatment, and therefore the authorities of the respondent Government had an obligation to conduct an investigation in accordance with Article 3 of the Convention.
In response to the applicant’s complaints, the police carried out a series of brief “pre-investigative checks” which invariably resulted in a refusal to institute criminal proceedings on the ground that no criminal offense had been committed. The supervising prosecutors quashed some of these judgments issued following the preliminary investigations, apparently finding that the applicant’s allegations were serious enough to require further consideration. However, the police officers did not carry out additional investigative actions and again issued decisions to refuse to institute criminal proceedings. For more than two years of repeated persecution, the authorities did not initiate a criminal investigation into the use of threats or violence against the applicant. The only criminal case that was instituted was not about any violent acts, but about a minor offense, which consisted of publishing photos of the applicant.
In the case of plausible complaints of ill-treatment, the authorities were obliged to institute criminal proceedings, and conducting only a “preliminary investigation” did not meet the requirement of an effective investigation under Article 3 of the Convention. This preliminary stage was too limited and could not lead to legal proceedings against the guilty person and to his punishment, since the initiation of criminal proceedings and the investigation were necessary conditions for bringing charges, which could then be considered by the court. The refusal to institute criminal proceedings in respect of credible complaints of serious ill-treatment indicated that the authorities of the respondent Government had not fulfilled their procedural obligation under Article 3 of the Convention.
The police refusal to initiate criminal proceedings and investigate promptly and thoroughly led to a loss of time and undermined the possibility of obtaining evidence of domestic violence. Even when the applicant had visible injuries, she was not prescribed a medical examination immediately after the incident. Police officers used various tactics that allowed them to complete each test as quickly as possible. The first of these tactics was to convince the attacker to recover and repair the damage. In other cases, the police tried to simplify the facts that the applicant had informed them. Faced with signs of criminal prosecution, such as recorded bodily harm or text messages with death threats, the police raised the bar for the evidence needed to open a criminal investigation. Police claimed that more than one blow was required as evidence to establish the beatings and that the threats of killing should have been “real and concrete”. They did not invoke any normative acts or judicial practice in support of this interpretation of the provisions of the criminal law.
In view of the manner in which the authorities conducted the case, especially their refusal to institute criminal proceedings in connection with the applicant’s plausible complaints of ill-treatment and the failure to take effective measures against her former partner in order to ensure his punishment on the basis of the relevant provisions of the law, they did not comply with their obligation to investigate ill-treatment.
In the case there was a violation of the requirements of Article 3 of the Convention (adopted unanimously).
Concerning compliance with article 14 of the Convention in conjunction with article 3 of the Convention. When a large-scale structural flaw was established, the applicant was not required to prove that she personally also became a victim of prejudice. The reliability of the evidence submitted by the applicant and the information obtained at the domestic level and from international sources, prima facie, indicated that domestic violence disproportionately affected women in the Russian Federation.
Despite the prevalence of domestic violence, the authorities of the Russian Federation did not adopt any legislation capable of resolving the existing problem and providing protection to women who were disproportionately affected. Over the past 20 years, more than 40 bills have been drafted, but not one has been passed. The current criminal law provisions were insufficient to provide protection against numerous forms of violence and discrimination against women, such as harassment, harassment, coercive behavior, psychological and economic violence, or the repetition of similar acts over a period of time. The absence of legislation defining such a thing as “domestic violence” and providing for measures to combat it at the systemic level distinguished the applicant’s case from cases in other states in which this legislation had already been adopted.
The continuing rejection of legislation to combat domestic violence and the absence of any form of restrictive or protective order clearly indicated that the authorities' actions in the applicant's case were not just a delay or error in combating domestic violence, but a reluctance to acknowledge seriousness and the extent of the problem of domestic violence in the Russian Federation and its discriminatory effects on women. For many years, not paying attention to the situation that leads to domestic violence, the authorities of the Russian Federation did not create conditions for real gender equality, which would allow women to live free from fear of ill-treatment or abuse of their physical integrity and enjoy equal protection of the law.
The case contained a violation of Article 14 of the Convention in conjunction with Article 3 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awards the applicant EUR 20,000 in respect of non-pecuniary damage.