Judgment of the ECHR of August 04, 2020 in the case "Tershana v. Albania (Tershana v. Albania)" (aplication No. 48756/14).
In 2014, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Albania.
The case successfully addressed an aplication about the lack of proper efforts on the part of the Albanian authorities in conducting an investigation into the acid attack on a woman. The case violated the requirements of article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant suffered serious facial injuries as a result of an aggressive attack on her on the street of Tirana by an unknown person who used acid. Although the applicant suspected her ex-husband of doing so, the investigation did not reveal the identity of the perpetrator.
Regarding compliance with article 2 of the Convention (procedural and legal aspect). The Court should have considered whether the investigation conducted by the Albanian authorities complied with the requirements of article 2 of the Convention in its procedural and legal aspect, taking into account the general situation of women in Albania, where the attack occurred, and the reaction of the authorities in investigating the incident.
Reports from international organizations on Albania regularly highlight the high level of violence against women in that country. Moreover, domestic reports seem to support the conclusion that violence against women was a widespread problem in Albania at the time. The reports of international organizations also note that these facts of violence in Albania were not always recorded, were not properly investigated, and the accused were not often identified and brought to criminal responsibility. Reports from international organizations have suggested that the Albanian police and public prosecutor's offices did not take an effective approach to violence against women on the basis of" social attitudes and cultural values", and that a climate of tolerance or impunity for perpetrators of such acts of violence prevailed in Albania. At the time of the attack on the applicant in the present complaint, there was a prima facie general situation in Albania that encouraged acts of violence against women.
If an attack on a person is carried out in a negative general climate in a country, the investigation of the facts of the attacks becomes even more important, and the investigative authorities should exercise greater care in conducting a comprehensive investigation to ensure the effective application of the law protecting the right to life.
The obligation to exercise such thoroughness in investigating, inter alia, acid attacks that, according to documents of the United Nations Committee on the Convention on the Elimination of All Forms of Discrimination against Women and other materials, may be part of the practice of "gender-based violence" against women, was re-outlined in its General Recommendation No. 19, adopted in 1992, according to which " States may also be held responsible for acts committed by private individuals, in, if these States do not take due care to prevent violations of rights or investigate acts of violence, punish perpetrators and pay compensation", and is reiterated in its General Recommendation No. 35 "On gender-based violence against women, intended to update General Recommendation No. 19", adopted in 2017.
A criminal case on the fact of the acid attack on the applicant was initiated by the prosecutor, and a number of investigative actions were carried out in connection with the applicant's ex-husband, in respect of whom a decision was issued on the application of compulsory medical measures. Other investigative actions were also carried out, including viewing recordings from two video cameras located in nearby banks. However, the authorities never determined the composition of the mixture found on the applicant's clothing and in the container. A chemical or toxicological examination was not carried out, as the relevant authorities either did not have the necessary special equipment or did not have the competence to send requests for an examination. In this connection, it was difficult for the Court to accept that the investigative action that was key to the investigation of the case, namely, the appointment of a forensic examination to determine the composition of the substance that caused the applicant's injuries, was not carried out with due urgency and determination. Thus, the Albanian authorities were responsible for resolving issues of competence or for setting up special institutions to conduct the necessary investigations, which were crucial for the continuation of the investigation and would meet the requirements of article 2 of the Convention in its procedural and legal aspect.
The circumstances of the attack on the applicant, which had all the hallmarks of a gender-based crime, should have prompted the Albanian authorities to act with particular care in conducting the investigation. If there was a suspicion that an attack on a person could be based on gender, it is especially important that the investigation is carried out quickly and effectively.
The final decision on this issue, the decision to terminate the investigation, which was not subject to appeal, did not contain a specific answer to the question of the composition of the substance with which the applicant was attacked, found on the applicant's clothes and in the abandoned container. Moreover, despite the applicant's repeated requests to inform her of the progress of the investigation, she was never provided with any information or documents in response. In this regard, the applicant could not appeal against the failure to carry out any investigative actions or ask the authorities to carry them out. Also, in the absence of an established identity of the offender, the applicant could not file a claim for damages. Consequently, the investigation in this case did not constitute an effective response by the Albanian authorities to the attack on the applicant.
The case involved a violation of the requirements of article 2 of the Convention (adopted unanimously).
The Court also found unanimously that there had been no violation of article 2 of the Convention in its substantive aspect, since effective legislation existed in Albania during the period relevant to the circumstances of the case, and since, prior to the attack, the applicant had failed to draw the attention of the Albanian authorities to any danger from her ex-husband, which would have entailed the obligation of the authorities to apply preventive measures or take other reasonable actions to protect the applicant's life.
In the application of article 41 of the Convention. The Court awarded the applicant EUR 12,000 in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.