Information Note on the Court’s case-law 243
August-September 2020
Tërshana v. Albania - 48756/14
Judgment 4.8.2020 [Section II]
Article 2
Article 2-1
Effective investigation
Failure of authorities to react with special diligence in conducting a thorough investigation following acid attack against a woman: violation
Facts – The applicant had been disfigured as a result of a serious acid attack by an unidentified assailant in a street in Tirana. Although she suspected her former husband, criminal investigations had not lead to any criminal conviction.
Law – Article 2 (procedural aspect): The Court had to examine whether the investigation carried out by the State authorities had met the requirements of the procedural limb of Article 2, having regard to the general situation of women in Albania in which the acid attack had occurred and the authorities’ response in investigating the incident.
International reports in respect of Albania had repeatedly stressed a high prevalence of violence against women. Moreover, the national reports lend support to the view that at the relevant time violence against women was a widespread problem. International reports further noted that violence against women was under-reported, under-investigated, under-prosecuted, and under-sentenced. They suggested that the police and prosecuting authorities manifested an ineffectual approach to violence against women on the ground of ‘social attitude and cultural values’ and that a climate of leniency or impunity prevailed towards perpetrators of violence against women. At the time of the attack, there existed prima facie a general climate in Albania that was conducive to violence against women.
Where an attack happened in such a general climate, the investigation assumed even greater importance and the investigative authorities had to be more diligent in conducting a thorough investigation, in order to secure the effective implementation of the domestic laws which protected the right to life. Such diligence to investigate, amongst other things, an acid attack – which, according to the Convention on the Elimination of All Forms of Discrimination against Women Committee and other reports, might be a practice of “gender based violence” against women – had been reiterated in General Recommendation no. 19 according to which “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation”, and that had been firmly re-established in General Recommendation no. 35.
An investigation into the acid attack had been opened by the prosecutor and several investigative actions had been carried out in respect of the applicant’s former husband, upon whom a compulsion order had been imposed. Further investigative steps had been undertaken, including the examination of the footage from the video cameras of two nearby banks. Nevertheless, at no point had the authorities been able to establish the nature of the substance found in the container and on the applicant’s clothes. No chemical or toxicological expert report had been obtained as the relevant authorities either lacked the necessary specialist equipment or it was not within their competence to compile such reports. In that regard, it was difficult for the Court to accept that an investigative measure of crucial importance for the case, namely an expert report to enable the identification of the substance used to attack the applicant, had not been carried out with due expedition and determination. It was up to the domestic authorities to sort out the issues of competence or to establish specialised institutions to carry out such procedural steps which were decisive for the progress of the investigation and to meet the procedural obligations under Article 2.
The circumstances of the attack on the applicant – which had the hallmarks of a form of gender-based violence – should have incited the authorities to react with special diligence in carrying out the investigative measures. Whenever there was a suspicion that an attack might have been gender motivated, it was particularly important that the investigation was pursued with vigour.
The final decision in the case - a decision to stay the investigation, which had not been amenable to appeal - had not provided any definite answer to the nature of the substance found in the container and on the applicant’s clothes. Moreover, despite the applicant’s repeated inquiries about the progress of the investigation, she had not been given any information or documents in response. She could not therefore challenge (the omission of) any investigative actions or request the authorities to take other measures. Nor could she bring a claim for damages in the absence of an identified perpetrator. Accordingly, the criminal investigation in question had not been an effective response by the authorities to the acid attack.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been no violation of the substantive aspect of Article 2 as there existed an effective legislative framework in Albania at the relevant time and that before the attack the applicant had not brought to the authorities’ attention any risks posed to her by her former husband, which would have triggered the authorities’ positive obligation to take preventive measures or other reasonable steps to protect her life.
Art. 41: EUR 12,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
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This summary by the Registry does not bind the Court.
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