Communicated on 6 October 2014
FOURTH SECTION
Application no. 48756/14
Dhurata TERSHANA
against Albania
lodged on 30 June 2014
STATEMENT OF FACTS
The applicant, Ms Dhurata Tershana, is an Albanian national, who was born in 1984 and lives in Tirana. She is represented before the Court by Mr N. Marku, a lawyer practising in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The acid attack on the applicant and the authorities’ response
On 29 July 2009 the applicant suffered grievous injuries in an acid attack by an unidentified assailant. She was urgently taken to Tirana’s Mother Theresa hospital to receive immediate medical treatment. The hospital record read that twenty-five per cent of the applicant’s body had been disfigured and she was in critical condition. On 1 August 2009 she was taken to Italy for more specialised hospital treatment. Between 2009 and 2012 the applicant underwent at least ten surgical interventions.
On 29 July 2009 the prosecutor opened a criminal investigation into the acid attack under Article 88 of the Criminal Code (see “Criminal Code” section below). The applicant made a statement according to which she did not recognise the assailant. She stated that she did not have any conflict with other persons, but suspected that the attack had been organised by her former husband as an act of revenge and continuation of domestic violence.
On the same day the prosecutor obtained a statement from a friend of the applicant who had been with the applicant during the acid attack and had also suffered grievous injuries. The applicant’s friend stated that she did not recognise the assailant.
No other official communication having been made with the applicant following the launch of the criminal investigation, on 10 March 2012 she authorised the Albanian Centre for the Rehabilitation of Trauma and Torture (“the Centre”) to pursue her case.
On 2 April 2012 the Centre sought information from the prosecutor about the progress of the investigation.
On 17 April 2012 the prosecutor informed the Centre that the criminal investigation had been stayed and the case file had been transferred to the police for further action in order to identify the assailant. The Centre was directed to seek copies of relevant documents from the relevant police authority.
On 19 April 2012 the Centre requested the Tirana police directorate (“TPD”) information about the progress of the investigation.
On 23 May 2012 the TPD informed the Centre that the investigation was ongoing and made available a copy of the medical reports, no copy of the prosecutor’s decision staying the investigation having been served without the prosecutor’s prior authorisation.
On 5 December 2013 the Centre requested the prosecutor to be provided with a copy of the investigation file.
On 8 January 2014 the prosecutor informed the Centre that the investigation had been stayed owing to the non-identification of the assailant. The case file had been entirely transferred to the police authority, from which the Centre could obtain a copy of the investigation file.
2. Proceedings concerning a claim for damages
On 3 September 2012 the applicant lodged a civil action with the Tirana District Court against the Ministry of Justice seeking compensation from the State as a result of the acid attack.
The applicant submits that she withdrew from the case owing to her impossibility of paying the court fees.
On 30 May 2013 the court discontinued the proceedings (pushimin e gjykimit) owing to the applicant’s and her lawyer’s non-appearance at the hearing.
B. Relevant law and practice
1. Domestic law
(a) Code of Criminal Procedure (“CCP”)
Article 105 of the CCP provides for the right of any interested party to request copies and extracts of or separate acts of the criminal investigation file, at that party’s expense.
Article 326 of the CCP, which provides for the prosecutor’s right to stay the criminal investigation, reads as follows:
“1. When the author of the offence is unknown (...), the prosecutor may decide to stay the criminal investigation.
2. The stay of the criminal investigation is decided after all possible actions have been carried out.
3. The stayed criminal investigation can re-start by a decision of the prosecutor.”
There is no specific provision in the CCP providing for a right to appeal against the prosecutor’s decision staying a criminal investigation.
By decision no. 4 of 18 January 2013 the Constitutional Court stated that there existed no remedy under domestic law against a prosecutor’s decision staying the criminal investigation.
(b) Criminal Code (“CC”)
Article 88 of the CC provides that serious intentional injury inflicting, inter alia, disfigurement, mutilation or any other permanent damage to the health, is punished with imprisonment of three to ten years.
Following amendments made to the CC in 2012, Article 130/a introduced domestic violence as a criminal offence. Physical assault or any other violent act, serious intimidation of death or serious injury, intentional injury against the spouse, former spouse, co-habitant, former co-habitant or any other person who is related by way of family ties to the perpetrator, with the intention to violate the physical, psychosocial and economic integrity, is punished with imprisonment from two to five years.
(c) The Domestic Violence Act (Law no. 9669 on measures against violence in family relations of 18 January 2006, as amended by laws nos. 9914 of 12 May 2008 and 10329 of 30 September 2010)
The Domestic Violence Act, which entered into force on 1 June 2007, has established a mechanism to provide victims of domestic violence with a protection order (“PO”) which may be given by a civil court at the request of the victim. An emergency (“immediate”) protection order (“EPO”) may be granted provisionally by a court if the perpetrator has threatened to commit acts of domestic violence or if the perpetrator poses a direct and immediate threat to the security, health or well-being of the victim or other family members (section 19). An EPO remains valid until the court grants a protection order. The Act provides for better protection, not only of the persons who are currently in a family relationship but also of persons who used to be in a family relationship, such as former spouses or partners (section 3).
The adoption of a protection order or an emergency protection order does not prevent the victim from instituting criminal proceedings under the Criminal Code (section 24). The police, the prosecutor or a non-governmental organisation may also request the adoption of a protection order or an emergency protection order (section 13). When the request has been submitted by the police or the prosecutor, the victim’s withdrawal will not lead to the discontinuation of the case (section 16).
Section 10 enlists the protection measures that may be ordered by a court. A protection order may thus include, amongst other measures, the removal of the perpetrator from the house inhabited by the victim (regardless of the perpetrator’s property rights), the prohibition of the perpetrator from approaching within a certain distance of the victim or other family members, the prohibition of the perpetrator from entering or staying in the temporary or permanent residence of the victim, or any part thereof, the placement of women together with children in temporary shelters, or the order for the perpetrator to participate in rehabilitation programmes.
The Domestic Violence Act also provides for the establishment of a shelter for victims of domestic violence (section 6 as amended) and a coordinated system of referring cases of domestic violence amongst authorities.
Breaching a protection order constitutes a criminal offence under article 320 of the CC and is punishable by a fine or up to two years’ imprisonment (section 17).
2. Reports concerning domestic violence and the situation of women in Albania
(a) Domestic violence in Albania: 2009 national population-based survey
The national survey, which was conducted in 2007 by the Institute of Statistics, confirmed that domestic violence against women was a widespread problem in families and communities throughout Albania.
According to the survey, at least 56% of surveyed women between 15 and 49 years of age had experienced one form of domestic violence, namely emotional abuse, psychological abuse, physical violence and sexual violence, in their marriage or intimate relationship. Battered women experienced multiple types of violence concurrently and suffered injuries of varying degrees of severity, especially cuts, bruises, aches, eye injuries, burns, sprains and/or dislocations, loss of consciousness, broken bones, broken teeth and/or serious injuries.
The majority of battered women did not seek help for the violence in their marriage or intimate relationship. In general, only 16% to 28% of women sought help for the violence in their marriage or intimate relationship. Of those women who sought help, nearly 91% sought help from their own family or other relatives. The reasons were numerous, including, amongst others: lack of available services to female victims of domestic violence, particularly in rural areas; family and friends advised many women that they should not seek assistance from outside government agencies or community services; many women blamed themselves for their own victimization; and many women feared that if they spoke out or sought help they would be blamed for their own victimization or they would be beaten even more or they would not be taken seriously or trusted or would be ridiculed or that would bring a bad reputation to their family’s name.
(b) Report on the implementation of the Domestic Violence Act prepared by the Centre for Legal Civic Initiatives
The report monitored Tirana District Court’s protection orders and emergency protection orders given from 1 June 2009 to 1 June 2010. According to the report, there had been a marked increase in the number of women reporting incidents to the police, which was due to an increased awareness of women of the importance of reporting domestic violence and a result of better preparation and qualifications of the relevant bodies that received and assisted victims of domestic violence. Compared to the period from 1 June 2007 to 30 April 2008 when the Tirana District Court had heard 18 cases in relation to the adoption of protection orders or emergency protection orders, from 1 June 2009 to 1 June 2010 the number of requests for the adoption of protection orders decided by that court rose to 406, 18.31% of which had been submitted by the police.
(c) “Ending domestic violence in Albania”, a report prepared by Amnesty International (AI) in 2010
The report stated that there had been a significant increase in reported incidents of domestic violence since the entry into force of the Domestic Violence Act on 1 June 2007. In 2007 the police reportedly received 274 reports of family violence; between January and September 2008 police registered 614 reports; by September 2009, some 993 cases had been reported. In July 2007 the Tirana District Court issued the first emergency protection order. In 2009, out of a total of 494 requests, 127 (25 per cent) were granted, 310 dropped, 29 refused and 28 proceedings not concluded.
Despite the growing number of requests made for protection orders, problems remained in their enforcement. In some cases, problems were procedural: for example, courts were required to send copies of a protection order, including emergency protection orders – within twenty-four hours of issue – to the victim, the police and social services, and their failure to do so created delays in the execution of court decisions. However, the major problem was the weakness of most protection orders, caused in part by a combination of discrimination and pragmatism on the part of the judiciary. Some judges were reluctant to order the eviction of the abusive partner from the family home, although this was provided in law. In other cases, recognising that the scarcity of housing and low incomes meant that whoever left the house would often find themselves homeless, judges thus often made orders for the perpetrator to live in one part of the apartment (and the victim in the other).
Specialised police units dealing with domestic violence had been established in 2007 and 2008 in major urban centres and police districts. However, the report pointed to the authorities’ failure to discharge their responsibility under the law, namely the lack of finances for the provision of services; the lack of free legal assistance to represent victims of domestic violence; the lack of preparation of educational materials for school curricula; failure of health centres to refer victims to other support services and provide them with the necessary medical reports for use as evidence in court hearings for protection orders; failure of local authorities to set up social services structures.
According to the report, it was impossible to tell from available data whether there had been any increase in criminal prosecutions for domestic violence. Cases of domestic violence were prosecuted under applicable offences defined in the Criminal Code (for example, murder, assault and threat). Court statistics did not reveal how many of those prosecutions and convictions were related to domestic violence. The statistics did not show how many prosecutions were initiated (following complaints to the police) or the outcome of those prosecutions.
(d) Shadow report on the implementation of the United Nations (UN) Convention on the elimination of all forms of discrimination against women (“‘CEDAW’ Convention”)
In response to the third periodical report of Albania within the framework of the UN CEDAW Convention, a joint report was prepared in June 2010 by a network of Albanian non-governmental organisations for submission to the CEDAW Committee (“the shadow report”).
The shadow report stated that implementation of the Domestic Violence Act by the local authorities was still in its initial stages. There was some cooperation between local authorities, the central government and non-profit organizations, and some pilot projects had been launched in a number of municipalities of the country for the creation of referral systems for the fight against violence. However, this activity needed to be spread throughout the whole country, especially in the rural communes. It was necessary that the local authorities establish the structures envisaged by the law.
According to the report, the authorities had failed to adopt a number of by-laws required for the implementation of the Domestic Violence Act. For example, they had not yet adopted an official list of lawyers who would provide free legal assistance, especially represent the victims of domestic violence; they had not established an appropriate infrastructure for receiving, accommodating and rehabilitating victims of domestic abuse as well as rehabilitating the assailants themselves; they had not set up referral systems for the fight against domestic violence at the local level.
(e) Concluding observations of the UN CEDAW Committee
In response to the third periodical report of Albania within the framework of the UN CEDAW Convention, at its forty-sixth session of July 2010, the CEDAW Committee, in so far as violence against women was concerned, stated, inter alia, the following:
“26. (...) The Committee remains concerned, however, about the continued high prevalence of violence against women in Albania. It is particularly concerned that domestic violence is not appropriately sanctioned and criminalized, and that marital rape is not defined as a specific offence under the new Penal Code. It is also particularly concerned about the high rate of suicide among female victims of domestic violence, about gaps in the Law on Measures against Violence in Family Relations and its implementation and the lack of statistical data.
27. (...) the Committee urges the State party to continue to put emphasis on comprehensive measures to address violence against women in the family and in society. The Committee calls upon the State party to amend, without delay, the Penal Code so as to establish marital rape as a specific criminal offence, to appropriately sanction and criminalize acts of domestic violence and to ensure that all cases of violence against women are swiftly prosecuted and punished. The Committee further recommends that the State party strengthen its efforts to ensure that female victims of violence have immediate protection, including the possibility of expelling the perpetrator from the home, effective recourse to a shelter and access to free legal aid and psychosocial counselling. The Committee urges the State party to adopt measures to prevent suicides by victims of domestic violence. It recommends ensuring that public officials, especially law enforcement officials, members of the judiciary, health-care providers and social workers, are fully sensitized to all forms of violence against women. The Committee calls on the State party to systematize data collection on violence against women, including domestic violence. It recommends that structures be established to help female victims of violence to rebuild their lives, including through the creation of job opportunities. The Committee invites the State party to further pursue, in collaboration with a broad range of stakeholders, including women’s and other civil society organizations, awareness-raising campaigns through the media and public education programmes to make such violence socially unacceptable, and to continue seeking international assistance towards this end.”
(f) Domestic violence in Albania: 2013 national population-based survey
The national survey, which was conducted by the Institute of Statistics, revealed that the proportion of women that “ever” experienced domestic violence had increased from 56% in 2007 (see the “2009 national population-based survey” above) to 59.4%. Women continued to experience multiple types of domestic violence in their marriage or intimate relationships, including multiple forms of psychological, physical and sexual violence. Battered women revealed they often experienced more or less the same domestic violence-related injuries of varying degrees of severity as the ones evidenced in the 2009 survey.
Only 8.4% of “ever” abused women and 7.1% of “currently” abused women tried to seek help for the domestic violence in their marriage or intimate relationship. Women turned for help mostly to their own family, their husband/partner’s family and their friends. Very few women sought help outside of their family and friends. In 2013, however, a larger percentage of “currently” abused women sought help from doctors/medical professionals, police, lawyers, judges, and social service organizations, marking a significant increase from 2007 to 2013 in the percentage of abused women that were willing to seek help from medical, legal, and social services.
COMPLAINTS
The applicant complains under Articles 2, 3, 8 and 13 of the Convention that the authorities have failed to protect her life and the right to a private life. She further complains about the authorities’ failure to conduct a prompt and effective investigation into the identification, prosecution and punishment of the assailant.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies within the meaning of Article 13 of the Convention and complied with the six-month time-limit as required by Article 35 § 1 of the Convention in relation to her complaints under Articles 2, 3 and 8 of the Convention?
2. Has there been a breach of Articles 2, 3 and 8 of the Convention? In particular:
(a) Were the authorities aware of the acts of domestic violence against the applicant? Did they comply with their positive obligation to take all necessary steps to protect the applicant’s rights, as required by Articles 2, 3 and 8 (see Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998‑VIII)?
(b) Did the legislative framework then in force provide adequate protection for victims of domestic violence?
3. Has there been a breach of Articles 2, 3 and 8 of the Convention in the present case? In particular, did the authorities conduct a prompt and effective investigation in compliance with the requirements under Article 2, 3 and 8 (see, for example, Opuz v. Turkey, no. 33401/02, §§ 108-13, ECHR 2009)? What investigative actions, if at all, did the authorities carry out?
4. Has there been a violation of Article 13 in connection with the lack of an effective remedy in respect of the applicant’s complaints under Articles 2, 3 and 8 of the Convention?
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