ECHR judgment of 02 March 2017 in the case of Talpis v. Italy (application No. 41237/14).
In 2014, the applicant was assisted in the preparation of the application. Subsequently, the application was and communicated to Italy.
In the case, a complaint was successfully considered for evading the assessment of the threat to life in the case of domestic violence. There has been a violation of Article 2, Article 3 and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In June and August 2012, the police were summoned twice to the applicant's home in connection with cases of domestic violence. Her husband was fined for unauthorized possession of lethal weapons, and his knife was taken away. The applicant left her matrimonial home and was granted housing by the association. On September 5, 2012, she filed an application for the institution of a criminal case for causing harm to health, ill-treatment and threats of violence, and also asked for protective measures.
During the first interrogation in the police in April 2013, the applicant changed her testimony: she indicated that she had been beaten, but she was not threatened and that she subsequently returned to the marital home. In view of these changes, which the applicant explained by the pressure her husband had on her, the investigation was partially discontinued (regarding the complaint of ill-treatment and threats of violence), but was continued on a complaint of injury (in October 2015, the husband was sentenced to fine).
On November 25, 2013, the police were summoned for the third time. The door was broken, bottles of alcohol were lying on the floor, but neither the applicant nor her son had any signs of violence: the applicant only said that her husband was drunk and needed help from a doctor, adding that earlier she had filed a complaint against him, but then changed her testimony. My husband was taken to the hospital. That same night he was fined for drinking in a public place. Then he returned home with a kitchen knife, which several times struck the applicant. Their son was killed while trying to prevent the attack.
In January 2015, the applicant's husband was sentenced to life imprisonment: in addition to murder and attempted murder, he was found guilty of ill-treatment after witnesses had testified about acts of violence that had previously occurred.
ISSUES OF LAW
Concerning compliance with Article 2 of the Convention. The state has a positive obligation to take precautionary operational measures to protect a person whose life is at risk. The existence of a real and immediate threat to life should be assessed with due regard to the specific context of domestic violence: the goal should not only be to protect society as a whole, but consistent episodes of domestic violence must be taken into account. National authorities had to take into account the situation of considerable mental, physical and material insecurity and vulnerability and assess the situation accordingly, providing it with appropriate support. In this context, the rights of the perpetrator can not enjoy priority over the victims' rights to life and physical and mental integrity.
In the present case, even though investigations were launched against the applicant's husband about cruel treatment in the family, physical injuries and threats of violence, the protection order was not issued and the applicant was heard only in September 2012, seven months after her complaint . This delay could lead to the deprivation of the applicant's immediate protection, which the situation required. In spite of the fact that in the future physical violence did not take place during this period, the Court could not ignore the fact that the applicant, who was intimidated by telephone, lived in great fear when she was in the reception center.
Although the applicant did change some of her testimony during interrogation in the police, which gave the authorities an excuse to stop part of the investigation, the authorities failed to assess the risks, including the risk of renewed violence, when the bodily injury proceedings were still ongoing. The Court therefore rejected the Government's argument that there was no tangible evidence of an immediate threat to the life of the applicant. The delays of the authorities deprived the complaint of effectiveness, creating a situation of impunity conducive to the resumption of acts of violence on the part of her husband, peaked in a tragic night on November 25, 2013.
However, on that night, police officers had to intervene twice, first when they examined the destroyed apartment, and then when they detained and fined the applicant's husband for drunkenness in a public place. In neither case did they make special attempts to provide the applicant with adequate protection consistent with the gravity of the situation, although they knew about the violence of her husband. The European Court can not speculate on how the situation could develop if the authorities took a different approach. However, evasion from taking reasonable measures that could actually change the course of events or mitigate the damage caused is sufficient for the emergence of state responsibility. Having the opportunity to check in real time the police file of her husband, the security forces should have known that he was a real threat to her, the direct realization of which could not be ruled out. Accordingly, the authorities did not use their powers to take measures that could reasonably prevent or at least mitigate the materialization of a real threat to the life of the applicant and her son. Obviously not having shown the required diligence, the authorities did not fulfill their positive obligation.
In the case there was a violation of the requirements of Article 2 of the Convention (adopted by six votes "for" at one - "against").
Concerning compliance with Article 3 of the Convention. The applicant could be considered as belonging to the category of "vulnerable persons" who are entitled to state protection, taking into account, in particular, the acts of violence to which she was subjected in the past. These violent acts, which caused her physical suffering and psychological pressure, were serious enough to qualify them as ill-treatment within the meaning of Article 3 of the Convention.
In accordance with the provisions of the Council of Europe Convention on the Prevention and Combating of Violence against Women and Domestic Violence (the Istanbul Convention, which was ratified by Italy and entered into force in 2014) requires special care when considering complaints of such violence. In this area, domestic authorities should consider the situation of extreme mental, physical and material vulnerability and vulnerability in which the victim is located, and to assess this situation as quickly as possible.
The Court took into account, in accordance with Article 2 of the Convention, that the authorities' avoidance of prompt action deprived the applicant of all effectiveness, creating a situation of impunity, which contributed to the commission of new acts of violence by her husband. In the present case, there was no explanation for the subsequent delays: seven months of official inaction before the institution of the criminal case and three years of criminal proceedings in connection with serious bodily harm after the applicant lodged her complaint. This official failure to act was clearly incompatible with the requirements of Article 3 of the Convention.
The violation of the requirements of Article 3 of the Convention (unanimously) was committed in the case.
Compliance with Article 14 of the Convention in conjunction with Articles 2 and 3 of the Convention. The European Court referred to its case-law on the aspect of gender discrimination in the authorities' avoidance of protecting women from domestic violence. The scale of the problem in Italy underscored the findings of the UN special rapporteur on violence against women, its causes and consequences after the official visit to Italy in 2012, the conclusions of the committee established under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 49th session, 2010 year), as well as the findings of the National Statistical Institute (ISTAT, 2014). The applicant submitted prima facie evidence in the form of statistics showing, first, that domestic violence affects mostly women and that, despite the reforms, a large number of women have been killed by their partners or former partners (femicide) and, secondly, that The sociocultural propensity to tolerate domestic violence persists. These prima facie evidence distinguish the present case from the case of Rumor v. Italy (judgment of 27 May 2014, complaint No. 72964/10), the circumstances of which are very different.
The Court noted, in accordance with articles 2 and 3 of the Convention, the failure of domestic authorities to ensure effective protection of the applicant and the situation of impunity benefiting the perpetrators of acts of violence. Underestimating the seriousness of these acts in the absence of reaction, the Italian authorities effectively encouraged them. Thus, the applicant was a victim of discrimination as a woman.
The case was violated the requirements of Article 14 of the Convention (adopted by five votes "for" with two - "against").
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 30,000 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.