Information Note on the Court’s case-law 257
December 2021
Tunikova and Others v. Russia - 55974/16, 53118/17, 27484/18 et al.
Judgment 14.12.2021 [Section III]
Article 46
General measures (pilot judgment)
Respondent State required to take comprehensive measures to address structural and discriminatory lack of protection of women against domestic violence
Article 3
Positive obligations
Failure to take adequate measures to protect domestic violence victims and conduct an effective investigation due to continuing structural problem: violation
Article 14
Discrimination
Discriminatory effects on women of continued failure to adopt legislation to combat domestic violence and provide any protective measures: violation
Facts – The four applicants were victims of domestic violence, from their partners or (former) husbands, ranging from an assault on Ms Tunikova’s life (application no. 55974/16) to recurrent violence in the cases of Ms Petrakova (application no. 53118/17), Ms Gershman (application no. 27484/18) and Ms Gracheva (application no. 28011/19) and, eventually, to an extreme form of mutilation in Ms Gracheva’s case, leaving her disabled her life (her hands were chopped off). The applicants complained that the Russian authorities had failed to protect them from acts of domestic violence due to a deficient domestic legal framework, to carry out an effective investigation into these acts and to put in place specific measure to combat gender-based violence against women.
Law –
Article 3: The treatment inflicted on the applicants had attained the necessary threshold of severity to fall within the scope of Article 3. This was the case not only in respect of the physical violence but also the psychological violence, which had been sufficiently serious to amount, in its own right, to treatment falling within the scope of Article 3. In particular, the perpetrators’ threatening behaviour had caused them to fear a repetition of the violence for extended periods of time. The feelings of anxiety and powerlessness they had been experiencing due to that behaviour must have been exacerbated by the dismissive attitude of the authorities which had offered the applicants no protection, often in the face of urgent requests for help. Further, the unpredictable escalation of violence and uncertainty about what might happen to them had increased their vulnerability and put them in a state of fear and emotional and psychological distress. The Court did not consider it necessary to examine whether the impugned treatment could also be characterised as constituting “torture”.
The Court therefore had to examine whether the State authorities had discharged their positive obligations under Article 3.
(a) The obligation to establish and apply a legal framework – It was not necessary for the Court to revisit its findings in Volodina v. Russia, in which it had first identified structural defects of Russian law, as the domestic legislative framework had not evolved in the two years since that judgment’s adoption. Indeed, the existing Russian legal framework – which lacked a definition of “domestic violence”, adequate substantive and procedural provisions to prosecute its various forms, and any form of protection orders – fell short of the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for victims. The circumstances of the present case provided a further example that the existing domestic-law provisions were not capable of adequately covering the many forms which domestic violence took.
(b) The obligation to prevent the known risk of ill-treatment – Bearing in mind the factors set out in its case-law and the circumstances of the case at hand, the Court found that the domestic authorities had been 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 their protection. In this respect, the Court had regard to the requirements outlined recently in Kurt v. Austria [GC] for the risk assessment in the domestic violence context. It found that the authorities had failed in their duty to carry out an immediate, autonomous, proactive and comprehensive 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 had 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, even within the scope of the existing legal framework, had allowed perpetrators to continue threatening, harassing and assaulting the applicants without hindrance and with impunity. As a result, the applicants had been denied the effective protection against violence to which they were entitled under the Convention. Notwithstanding, 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 emphasised that imposing a severe penalty for a violent offence after it has been committed – as it happened in the case of Ms Gracheva – did not eliminate or attenuate the responsibility of the domestic authorities for their earlier failure to provide her with adequate protection measures.
(c) The obligation to carry out an effective investigation – In view of the above, the authorities’ obligation to carry out an investigation satisfying the requirements of Article 3 was triggered. Responding to the applicants’ assault allegations, the police had limited their intervention to short “pre-investigation inquiries” which had invariably concluded with a refusal to institute criminal proceedings on the grounds that no publicly prosecutable offence had been committed. No serious attempt had been made to establish the circumstances of the assaults or to take a comprehensive view of a series of violent incidents which was required in domestic‑violence cases. The scope of the “pre-investigation inquiries” had been confined chiefly to hearing the perpetrator’s version of the events with no statements from witnesses, forensic examination of injuries and collection of any other relevant evidence. Further, as per the Court’s well-established case-law, a “pre-investigation inquiry” alone did not meet the requirement for an effective investigation under Article 3.
In most instances, due to the lacunae in substantive a law, a refusal to initiate a criminal investigation referred to the fact that the injuries sustained by the applicants had not been severe enough for launching public prosecution. This had left the applicants with the only viable legal option to seek redress through private prosecution of the perpetrators for which they could not benefit from any assistance by the State authorities. Leaving the applicants to their own devices in a situation of known domestic violence had been tantamount to relinquishing the State’s obligation to investigate all instances of ill-treatment. In addition, the magistrates dealing with private prosecution claims had shown no awareness of the particular features of domestic violence cases and no genuine will to have perpetrators brought to account. Even when confronted with indications of publicly prosecutable offences, such as recorded injuries or death threats, the authorities had balked at, or prevaricated in, the obligation to institute criminal proceedings and had relied on hasty and ill-founded conclusions to close their inquiries. In view of the authorities’ failure to investigate effectively credible claims of ill-treatment and ensure the prosecution and punishment of the perpetrators, the State had failed to discharge its duty to investigate the ill-treatment that the applicants had suffered.
Conclusion: violation (unanimously)
Article 14 in conjunction with Article 3: The Court’s findings in Volodina on the generalised problem of domestic violence in Russia and the continued failure to take any measures to counter the discriminatory treatment of women and protect them from abuse, were also applicable in the circumstances of the present case. Since a structural bias had been shown to exist, the applicants did not need to prove that they were also victims of individual prejudice.
Conclusion: violation (unanimously)
Article 41: EUR 330,660 in respect of pecuniary damage and EUR 40,000 in respect of non-pecuniary damage to Ms Gracheva; and EUR 20,000 to each other applicant in respect of non-pecuniary damage.
Article 46: The problem underlying Convention violations which the Court had found in the present case stemmed from the legislation itself, and the findings extended beyond the sole interests of the applicants in the instant case. Several years after the events in this case and more than two years after the Volodina judgment the situation had not changed. Moreover, due to the lack of protection measures in any form, domestic violence victims had been applying to the Court for an indication of interim measures under Rule 39 of the Rules of Court. The COVID-19 pandemic had further aggravated the situation and brought about a substantial increase in the number of domestic violence complaints. In view of the continued absence of legislation addressing the issue of domestic violence at national level and the urgency of the matter concerning, as it did, the possibility for victims to live a life free from violence, the Government’s obligations under the Convention compelled it to introduce legislative and other changes without further delay. The need for such amendments was all the more pressing as large numbers of people affected by violations of a fundamental Convention right had no other choice but to seek relief through time-consuming international litigation. For the respondent Government to comply with its Convention obligations, clear and specific changes were required in the domestic legal system that would allow all persons in the applicants’ position to obtain adequate and sufficient redress for such violations at domestic level. The domestic authorities had thus to develop a comprehensive and targeted response encompassing all areas of State action including the prompt revision or amendment of legislation to bring it into compliance with the Convention and international standards on prevention and punishment of domestic violence legislation, public policy, programmes, and institutional frameworks and monitoring mechanisms.
The Court gave detailed and specific indications as to the measures to be taken under this provision by the Respondent State. These had to include, inter alia, a legal and comprehensive definition of domestic violence to cover acts of violence in various forms, acts that had to be considered as a single course of conduct or a series of related incidents and never in isolation; the criminalisation of such acts and the punishment by appropriate penalties, covering all current and former members, spouses or partners of a family or domestic unit, whether living under the same roof or separated; a comprehensive framework for the protection of, and assistance to, all victims; creating an interagency mechanism for cooperation between State agencies and other stakeholders to prevent domestic violence; the establishment of legal mechanisms for protecting and compensating victim; funding rehabilitation programmes for perpetrators of domestic violence; the prompt, thorough and impartial investigation of complaints by the authorities of their own motion with criminal proceedings being initiated in all cases of domestic violence and perpetrators brought to trial timely and expeditiously; putting into place protocols and instructions for handling and investigating domestic violence complaints; consideration by the authorities of the reasons of the withdrawal of a domestic complaint and whether the seriousness of the attacks required them to in any event pursue the proceedings; and “autonomous”, “proactive” and “comprehensive” risk assessment. Furthermore, adequate and effective measures of protection (extra-judicial and judicial) for victims of domestic violence, had to be made available without further delay. Such protection measures (whether “restraining orders”, “protection orders” or “safety orders”) should possess the key features identified by the United Nations Committee on the Elimination of Discrimination against Women and the United Nations Special Rapporteur on violence against women. In particular, protection orders: should be made available independently of any other legal proceedings, such as a criminal case against the perpetrator, and based on a standard of proof with respect to the victim’s evidence which was not the criminal standard of proof; require the perpetrator to maintain a specified distance from the victim at all times; and prohibit the perpetrator from attempting to contact the victim in any way (offline or online). Compliance with their terms should be rigorously and continually monitored by the authorities, and failure to comply should be criminalised and accompanied by sufficiently dissuasive and deterrent sanctions.
Lastly, with a view to addressing the situation of inequality and de facto discrimination against women, the domestic authorities should put into place an action plan for changing the public perception of gender-based violence against women and disseminate information on available legal and other remedies to victims. In this connection, the respondent State should provide mandatory training in domestic-violence dynamics for judges, police officers, prosecutors, medical professionals, social workers and other officials who might come into contact with victim. It should also design a monitoring mechanism for accurate collection of comprehensive statistics on prevention and punishment of domestic violence and recording of statistical data on domestic violence disaggregated by sex and age and nature of the relationship between the perpetrator and the victim or victims, including the complaints of domestic violence which did not result in the institution of administrative or criminal proceedings.
Pending the implementation of the indicated measures, the Court would continue to deal with similar cases in a simplified and accelerated form in accordance with its well-established case-law.
(See also Opuz v. Turkey, 33401/02, 9 June 2009, Legal Summary; Eremia v. the Republic of Moldova, 3564/11, 28 May 2013, Legal Summary; Volodina v. Russia, 41261/17, 9 July 2019, Legal Summary; Kurt v. Austria [GC], 62903/15, 15 June 2021, Legal Summary)
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This summary by the Registry does not bind the Court.
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