EHRM, 14-12-2021, nr. 55974/16, nr. 53118/17, nr. 27484/18, nr. 28011/19

The Court will first examine whether domestic substantive law is capable of ensuring that all forms of domestic violence are prosecuted and punished. Secondly, it will consider whether the domestic legal framework provides sufficient measures of protection for victims of domestic violence.

The applicants submitted that no protection orders were available to them under Russian law and that the authorities in general had shown no awareness of the particular context of domestic violence. Even minimal protection measures had not been taken against perpetrators in any of their cases. No member of the police or prosecutor's office to whom the applicants had appealed had any special preparation or qualification for handling cases of domestic violence. The police had remained completely passive in the face of the applicants' complaints of systematic violence: they had not explained to the applicants how to protect themselves in cases of violence, had not evaluated the risks of the applicants' situation, had not warned about the danger of repeated acts of violence, had not discussed any safety plans with them, had not offered any form of protective measures, and had not told the applicants where they could receive legal, psychological, or social support. By failing to sanction the perpetrators' behaviour in any way, the authorities had set the stage for new episodes of violence.

In Ms Gershman's case, the custody courts had ignored the context of domestic violence when deciding to hold the meetings between her and her daughter in the presence of O. This had led to new episodes of violence on his part during her meetings with the child. The Government's claim of her aggressive behaviour was unfounded: the court decisions to which they referred had been overturned on appeal as unlawful; in any event, the authorities have a positive obligation to protect anyone from violent behaviour, including victims who had also been violent. Ms Petrakova had repeatedly appealed to the authorities for assistance. The authorities had not taken any measures to prevent new incidents, even as the situation continued to escalate because А., sensing his impunity, had become more aggressive. They did not apply any measures of restraint even after starting criminal proceedings against A., despite information from Ms Petrakova that he possessed an air gun and a hunting rifle. In Ms Gracheva's case, once her mother had reported D.'s violent and controlling behaviour to the police, the authorities ought to have taken protective measures. However, they had not assessed the risk of repeated violence nor offered her any risk-mitigating strategy. The police officer's advice ‘to limit communication with her husband’ had been a wholly inadequate response in a situation which required active and firm intervention by the authorities rather than shifting the burden of providing her own protection to her. The Government's implication that she had been in any way responsible for an escalation of the violence reflected the Russian authorities' stereotypical attitude to domestic violence as a ‘private and trivial matter’.

The Government submitted that, in the case of Ms Tunikova, the authorities had been unaware of the ongoing physical abuse for almost two years until the police had been called in to deal with a violent family conflict. Ms Gershman and Ms Petrakova had failed to apply for the State protection measures during the proceedings in the magistrates' courts, although they could have done so. In addition, Ms Gershman's behaviour had been aggressive and provocative; she had been held administratively liable for attacking her ex-husband who ‘may have needed protection from her more than she did from him’. Ms Gracheva had not followed the police officer's advice to limit her communication with her husband. During her former husband's trial, she had explained that she was trying to ‘preserve her family and the friendly relations between its members’. In this situation, no preventive measures could have been effective as she was unwilling to follow even minimal but reasonable precautions. Her former husband had been found guilty in court proceedings and sentenced to imprisonment.

The State authorities have a responsibility to take measures for the protection of an individual whose physical or psychological integrity is at risk from the criminal acts of a family member or partner (see Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007; M. and Others v. Italy and Bulgaria, no. 40020/03, § 105, 31 July 2012; and Opuz, cited above, § 176). Interference by the authorities with private and family life may become necessary in order to protect the health and rights of a victim or to prevent criminal acts in certain circumstances. The risk of a real and immediate threat which has been brought to the knowledge of domestic authorities must be assessed, taking due account of the particular context of domestic violence. In such a situation, it is 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. In many cases where the authorities did not remain totally passive, they still failed to discharge their obligations under Article 3 of the Convention because the measures they had taken had not stopped the abuser from perpetrating further violence against the victim (see the case-law references in Volodina, cited above, § 86).

The Court has recently clarified the scope of the State's positive obligation to prevent the risk of recurrent violence in the context of domestic abuse (see Kurt, cited above, §§ 161 et seq.).

First, the domestic authorities are obliged to respond ‘immediately’ to complaints of domestic violence and to process them with special diligence, since any inaction or delay deprives the complaint of any utility by creating a situation of impunity conducive to the recurrence of acts of violence. In assessing the ‘immediacy’ of the risk, the authorities should take into account the specific features of domestic violence cases, such as consecutive cycles of violence, often with an increase in frequency, intensity and danger over time (ibid., §§ 165-66 and 175-76).

Second, the authorities have a duty to undertake an ‘autonomous’, ‘proactive’ and ‘comprehensive’ risk assessment of the treatment contrary to Article 3. The authorities should not rely solely on the victim's perception of risk but complement it with their own assessment, preferably using standardised risk assessment tools and checklists and collecting and assessing information on all relevant risk factors and elements of the case, including from other State agencies. The conduct of the risk assessment should be documented in some form and communicated to other stakeholders who come into regular contact with the persons at risk; the authorities should keep the victim informed of the outcome of the risk assessment and, where necessary, provide advice and recommendations on available legal and operational protective measures (ibid., §§ 167-74).

Third, once the risk to a victim of domestic violence has been identified, the authorities must take, as quickly as possible, operational preventive and protective measures that are adequate and proportionate to the risk. A proper preventive response often requires coordination between multiple authorities, including the rapid exchange of information (ibid., §§ 177-83).

The Court has had regard in particular to the following factors to establish that State authorities ought to have been aware of the risk of recurrent violence: the perpetrator's history of violent behaviour and failure to comply with the terms of a protection order (see Eremia, cited above, § 59), an escalation of violence representing a continuing threat to the health and safety of the victims (see Opuz, cited above, §§ 135-36), the perpetrator's access to weapons (see Kontrová, cited above, § 52), and the victim's repeated pleas for assistance through making emergency calls, formal complaints and petitions to the head of police (see Bălşan v. Romania, no. 49645/09, § 62, 23 May 2017).

The above elements were also present in the circumstances of the present case. The police present at the scene of a violent altercation between Ms Tunikova and her partner could observe first-hand the injuries to her head and upper body (see paragraphs 6 and 7 above). Ms Gershman and Ms Petrakova reported the violence of their partners to the authorities shortly after it had started, and their initial reports were followed in each case by many subsequent complaints concerning violence of varying degrees of severity (see paragraphs 15 and 25 above). Their complaints were accompanied by medical documents showing the extent of the violence against them. Ms Petrakova pleaded for protection and indicated that the perpetrator owned weapons, including a hunting rifle (see paragraph 29 above). In the case of Ms Gracheva, first her mother and later the applicant herself reported the events to the police (see paragraph 44 above).

The Court finds that in all cases the domestic authorities were aware, or ought to have been aware, of the violence to which the applicants had been subjected and had an obligation to assess a risk of its recurrence and take adequate and sufficient measures for the applicants' protection. However, they failed to comply with that obligation, whether ‘immediately’, as required in domestic violence cases, or at any other time.

First, the authorities failed to conduct an autonomous, proactive and comprehensive risk assessment. There are no provisions under Russian law, policy or regulatory framework that provide for any guidance, protocols or instruction on gender-specific risk assessments and risk management in domestic violence cases. The police in Russia do not use any risk assessment methodology to assess the risk of domestic violence threats being carried out and the risk of repeated violence, including the risk of lethality or serious harm to health. At no point in time did the authorities conduct a documented risk assessment of the applicants' situation. They did not take into account the perpetrators' history of violence or access to weapons. Having received no special training in dealing with domestic violence, the police officers and prosecution authorities showed no awareness of the specific character and dynamics of domestic violence when dealing with the applicants' complaints. It is immaterial that there was no recurrence of violence in Ms Tunikova's case, as in order to determine whether this obligation has been fulfilled, the authorities must be able to show that they have undertaken a proactive and autonomous risk assessment, which they failed to do in her case and in those of the other applicants.

Second, the authorities remained totally passive and did not take any protective measures to prevent further incidents of violence against the applicants. As the Court has found above, this was primarily due to the deficient Russian legal framework which has no mechanism for the protection of domestic violence victims such as protection orders (see paragraph 97 above). However, the domestic authorities failed to discharge their obligation to take measures to mitigate the risk of further violence even within the scope of the existing legal framework. Certain reasonable and adequate measures, such as the immediate opening of a criminal investigation in respect of publicly-prosecutable offences, such as threats of death or ‘tormenting’, and the application of criminal-law restraints to the suspect where appropriate, could have had a deterrent effect on the perpetrator and prevented an escalation of violence. The authorities could have offered Ms Gracheva alternative accommodation pending resolution of criminal proceedings or adjusted custody arrangements for Ms Gershman to avoid her confrontation with the former husband. Regardless of whether or not Ms Tunikova and Ms Gershman were also violent against their partners, the Court reiterates that the obligation to protect a victim from the partner's recurrent violence exists independently of the fact that she may also have been violent towards him (see Kalucza v. Hungary, no. 57693/10, § 61, 24 April 2012).

As the applicants' cases show, the authorities did not consider that domestic violence complaints merited active intervention. They did not provide the applicants with any protection measures and assumed that victims of domestic violence should be able to defend themselves. In Ms Gracheva's case, one police inspector told her that her husband's controlling and coercive behaviour was a ‘manifestation of love’ and advised her to withdraw her complaint and ‘limit her communication with him’ (see paragraphs 45 and 50 above). In other cases, confronted with the applicants' reports of assault, the police had taken no meaningful steps to investigate their complaints or secure evidence and directed them instead to initiate a private prosecution case, leaving them to fend for themselves (see paragraph 15 and 25 above). As a result, the applicants were denied the effective protection against violence to which they are entitled under the Convention. The risks of recurrent violence in their cases had not been properly assessed or taken into account. However, even if the risks had been properly assessed and documented, no adequate and effective mechanisms in Russian law were available to ensure the victims' safety. The Court emphasises that imposing a severe penalty for a violent offence after it has been committed — as it happened in the case of Ms Gracheva — does not eliminate or attenuate the responsibility of the domestic authorities for their earlier failure to provide her with adequate protection measures.

The Court finds that the Russian authorities failed in their duty to carry out an immediate and proactive assessment of the risk of recurrent violence against the applicants and to take operational and preventive measures to mitigate that risk, to protect the applicants and to censure the perpetrators' conduct. They remained passive in the face of serious risk of ill-treatment to the applicants and, through their inaction and failure to take measures of deterrence, allowed perpetrators to continue threatening, harassing and assaulting the applicants without hindrance and with impunity (compare Volodina, cited above, § 91, and Opuz, cited above, §§ 169-70).

The applicants submitted that their cases demonstrated a pattern of State inaction, passivity and negligence in the investigation of domestic violence. Confronted with allegations of ill-treatment, the authorities, if they reacted at all, had limited themselves to conducting ‘pre-investigative inquiries’ which would usually lead to a refusal to investigate. Three applicants had no other choice but to attempt to prosecute the perpetrator in private prosecution proceedings, a procedure that cost them resources, time and renewed psychological suffering yet did not yield any results. In private-prosecution proceedings, the applicants had to summon and question possible witnesses in court; lodge an application to request and obtain medical records and expert evidence; question the witnesses for the defence and the defendant himself; and formulate a possible sentence. Despite being victims of the ill-treatment, they had to prove that the defendant was guilty ‘beyond a reasonable doubt’ which was a highly difficult standard for individuals to satisfy without the support of law enforcement, especially in cases concerning domestic violence. In Ms Tunikova's case, the juggling of jurisdiction between the police and the magistrate greatly affected the speed and tone of the initial stages of the proceedings and affected the applicant as a victim of domestic violence, as her fear, depression and distress were greatly increased. At the final hearing, her counsel had telephoned the court clerk several times to warn about their being late because of a traffic jam, but when all of them appeared in court, the decision on dismissing the case had already been issued. The police had not opened a criminal case into Ms Gershman's allegations. In private-prosecution proceedings, the magistrates had not considered the history of abuse but had rather dealt with the episodes as isolated incidents. In the case of Ms Petrakova, an investigation on the charge of ‘tormenting’ had been limited to just three violent incidents; no investigation had been conducted into the other twenty incidents. The recharacterisation of the offences from ‘tormenting’ to ‘battery’ had ignored the systematic nature of the violence against her. The case had been eventually closed without notifying Ms Petrakova, and her former partner had gone unpunished. In the case of Ms Gracheva, her mother had first reported the assault and kidnapping in November 2019. The police had not visited the scene, had not questioned any witnesses, had not collected footage of CCTV cameras and had not searched her husband's car. Nine police officers had been disciplined or dismissed because of their failure to arrange for a prompt examination of the reports. The lack of police reaction at the most crucial initial stage — before irreparable harm had been caused to Ms Gracheva — had led to an escalation of violence because her husband had realised that he could act with impunity. She invited the Court to hold that prosecution of State agents for negligence formed part of the obligation to carry out an effective investigation.

The Government submitted that the domestic authorities had discharged the obligation to carry out an effective and diligent investigation into all instances of ill-treatment which the applicants had reported to them. In Ms Tunikova's case, the private-prosecution proceedings against the perpetrator were discontinued because she was late for the hearing. The courts had correctly decided that her failure to appear in time disclosed an unwillingness on her part to pursue the matter. In the Government's view, this indicated that she was partly responsible for the alleged violation. In the case of Ms Gershman, the police had been unable to verify her allegations and dismissed the case for lack of evidence of an offence. She had reported the incidents to the police with a significant delay of between two and twenty-eight days. In the latter case, it could not be said that the investigation was ineffective as the police had been unable to gather evidence due to the considerable lapse of time and had had no choice but to rely on the account of events provided by the victim and the perpetrator. In addition, Ms Gershman had not applied for judicial review of the police's decision, implying that she was satisfied with the outcome of the proceedings. The courts had taken evidence from her in private-prosecution proceedings but had found her allegations unsubstantiated. Ms Petrakova had successfully claimed damages from the perpetrator who had also been convicted under Article 116 of the Criminal Code. However, his conviction had been overturned because of her appeal. The investigation into an offence of ‘tormenting’ was not yet finished. In Ms Gracheva's case, there had been no violation of the procedural obligation under Article 3 of the Convention because her former husband had been tried and convicted. The police officers involved in her case had been disciplined through reprimand, a record of poor performance or dismissal.

The Court reiterates that the obligation to conduct an effective investigation into all acts of domestic violence is an essential element of the State's obligations under Article 3 of the Convention. To be effective, such an investigation must be prompt and thorough; these requirements apply to the proceedings as a whole, including the trial stage (see M.A. v. Slovenia, no. 3400/07, § 48, 15 January 2015, and Kosteckas v. Lithuania, no. 960/13, § 41, 13 June 2017). The authorities must take all reasonable steps to secure evidence concerning the incident, including forensic evidence. Special diligence is required in dealing with domestic violence cases, and the specific nature of the domestic violence must be taken into account in the course of the domestic proceedings. The State's obligation to investigate will not be satisfied if the protection afforded by domestic law exists only in theory; above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays (see Opuz, cited above, §§ 145-51 and 168; T.M. and C.M. v. the Republic of Moldova, cited above, § 46; and Talpis v. Italy, no. 41237/14, §§ 106 and 129, 2 March 2017). The effectiveness principle means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public's confidence in, and support for, the rule of law and for preventing any appearance of the authorities' tolerance of or collusion in acts of violence (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006-XII (extracts)).

The Court has established above that the authorities were aware, or ought to have been aware, of the violence to which the applicants had been subjected (see paragraph 107 above). Their allegations were corroborated with evidence, including medical reports and statements by witnesses, and amounted to an arguable claim of ill-treatment, triggering the authorities' obligation to carry out an investigation satisfying the requirements of Article 3 of the Convention (see Volodina, cited above, § 93).

Responding to the applicants' allegations of assault, the police limited their intervention to short ‘pre-investigation inquiries’ which invariably concluded with a refusal to institute criminal proceedings on the grounds that no publicly prosecutable offence had been committed (see paragraphs 15, 16, 22, 25–27 and 31 above). The Court is not convinced that the authorities made a serious attempt to establish the circumstances of the assaults or took a comprehensive view of a series of violent incidents which is required in domestic-violence cases. The scope of the ‘pre-investigation inquiries’ was confined chiefly to hearing the perpetrator's version of the events. Police officers did not take statements from some witnesses, did not order a forensic examination of injuries and did not collect any other relevant evidence. It is moreover the Court's well-established case-law that a ‘pre-investigation inquiry’ under Russian law is not capable in principle of meeting the requirements for an effective investigation under Article 3. This preliminary stage has too restricted a scope and cannot lead to the trial and punishment of the perpetrator, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges that may then be examined by a court (see Volodina, cited above, § 95, and the case-law cited therein).

In most instances, a refusal to initiate a criminal investigation referred to the fact that the injuries sustained by the applicants were not severe enough for launching public prosecution. This was due to lacunae in substantive law that does not criminalise many forms of domestic violence and requires that the injuries involve at least a long-term health impairment or three-week incapacity for work to justify an investigation and public prosecution (see paragraphs 89 and 90 above). So long as the applicants' injuries had not reached that threshold of severity, their only viable legal option was to seek redress through private prosecution of the perpetrators. The pursuance of private-prosecution proceedings was entirely dependent on their own efforts and determination to bring perpetrators to account. They could not benefit from any assistance by the State authorities, whether in gathering incriminating evidence, drafting legal documents, obtaining statements from witnesses or presenting charges in court. The Court considers that leaving the applicants to their own devices in a situation of known domestic violence is tantamount to relinquishing the State's obligation to investigate all instances of ill-treatment.

In addition, the magistrates dealing with private prosecution claims showed no awareness of particular features of domestic violence cases and no genuine will to have perpetrators brought to account. In the first round of proceedings in Ms Tunikova's case, the magistrate accepted that her former partner had engaged in criminally reprehensible conduct but chose to divest himself of the matter on the grounds that the police should deal with it (see paragraph 8 above). Even though Ms Tunikova was represented by counsel, she had been required to appear in person in court at each hearing where she had to relive and retell a single episode of domestic violence over a total of twenty-one months. An unintentional failure to appear for the hearing on time had been treated as a withdrawal of the charges; the magistrate dismissed the matter on procedural grounds, without attributing responsibility for her injuries or verifying that she had been afforded adequate protection (compare Polshina, cited above, § 37). The same pattern of seeking to dispose summarily of the matter on formal grounds was present in Ms Gershman's case, in which the magistrates also referred the charges to the police and the police discontinued the proceedings on the grounds that the injuries did not reach the threshold of severity for public prosecution (see paragraph 18 above). One magistrate went as far as to put the burden of proof solely on Ms Gershman by requiring her to prove that the injuries had been caused by her partner's assault and not in some other way at a later point in time (see paragraph 20 above). In Ms Petrakova's case, two magistrates invoked a different ground for not considering her claims, namely that, following her divorce, she was no longer legally related to the perpetrator, while assault by strangers was not a criminal offence (see paragraph 32 above). As a consequence, none of the perpetrators in the three cases was brought to account for the ill-treatment they allegedly inflicted.

Even when confronted with indications of publicly prosecutable offences, such as recorded injuries or death threats, the authorities have balked at, or prevaricated in, the obligation to institute criminal proceedings and relied on hasty and ill-founded conclusions to close their inquiries. Thus, they refused to investigate the death threats against Ms Tunikova and Ms Petrakova, claiming that they were not ‘real’ enough to be prosecuted under criminal law (see paragraphs 8 and 25 above). Those assertions were not corroborated with any findings of fact or based on an autonomous and comprehensive assessment of a risk of lethality or serious injury. In Ms Gracheva's case, a failure to investigate promptly the report of the death threats may have reinforced the perpetrator's sense of impunity, as the investigation into the death threats did not begin until much later, after the perpetrator had caused irreparable harm to her (see paragraphs 47–48 above). The Court reiterates that the prohibition of ill-treatment under Article 3 covers all forms of domestic violence, including the death threats, and every such act triggers the obligation to investigate. Threats are a form of psychological violence and a vulnerable victim may experience fear regardless of the objective nature of such intimidating conduct (see Volodina, cited above, § 98). The CEDAW Committee has indicated that, to be treated as such, gender-based violence does not need to involve a ‘direct and immediate threat to the life or health of the victim’ (ibid., § 56).

Lastly, the Government contended that other legal remedies, including a civil action for damages against the perpetrator, could have fulfilled their procedural obligations under the Convention. The Court reiterates that a civil claim could have led to the payment of compensation but not to the prosecution of those responsible for the acts of ill-treatment. Accordingly, it would not be conducive to the State discharging its procedural obligation under Article 3 in respect of the investigation of such violent acts (see Volodina, cited above, § 100, and the authorities cited therein).

In view of the manner in which the authorities handled the applicants' reports of domestic violence — notably the authorities' failure to investigate effectively credible claims of ill-treatment and ensure the prosecution and punishment of the perpetrators — the Court finds that the State has failed to discharge its duty to investigate the ill-treatment that the applicants had suffered.