Communicated on 28 June 2019
THIRD SECTION
Application no. 55974/16
Natalya Yuryevna TUNIKOVA against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
1. The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. The case of Natalya Tunikova (application no. 55974/16 lodged on 12 September 2016)
2. The applicant, Ms Natalya Yuryevna Tunikova, is a Russian national who was born in 1972 and lives in Moscow. She is represented before the Court by Mr Gleb Glinka and Ms Maria Voskobitova, lawyers practising in Moscow.
3. In April 2011, Ms Tunikova met D. and they started living together. On 9 August 2012 D. assaulted her for a first time. He kicked and punched her and tried to choke her. In 2013 she endured more incidents of verbal and physical abuse. On 15 September 2013 ambulance workers told her to file a report with the police. D. overheard their advice and stopped abusing her for several months.
4. On 10 August 2014 Ms Tunikova and D. had a particularly violent row. D. punched her on the head and began pulling her by the hair towards the open balcony door in the kitchen. Fearing that he would throw her off the balcony, she grabbed a kitchen knife and stabbed him. D. let go of her and called an ambulance and the police.
5. Ms Tunikova was charged with inflicting grievous bodily injuries and spent the night in the police station. She was unwell and had to be examined by doctors on several occasions. They diagnosed her with a brain concussion and noted abrasions on her head, shoulders and back. After her release, she underwent a seven-day treatment in the city hospital.
6. On 21 October 2014 Ms Tunikova filed a private-prosecution complaint against D. on the charge of “minor bodily harm” under Article 115 of the Criminal Code. The justice of the peace of the Vykhino-Zhulebino district in Moscow heard Ms Tunikova and the witnesses she had listed, and held to discontinue the proceedings on the grounds that the facts of the case disclosed indications of an offence under Article 119 of the Criminal Code (Threat of death or bodily harm). Since it was a public-prosecution offence, the justice referred the matter to the district police. On 17 January 2015 the Vykhino district police declined to open criminal proceedings, finding that it had not been shown that the threat of death had been a “real” one or that Ms Tunikova had reasons to fear for her life.
7. On 4 February 2015 Ms Tunikova resubmitted a private-prosecution complaint against D. to the same justice of the peace. On 5 May 2015 the justice acquitted D. of the charges. He attached decisive importance to the statements by two police officers who had been called to the scene on 10 August 2014 but had not seen any injuries on Ms Tunikova, and to the 17 January 2015 decision declining the institution of criminal proceedings.
8. Counsel for Ms Tunikova filed an appeal. He pointed out in particular that the acquittal had been pronounced by the same justice of the peace who had already decided on Ms Tunikova’s previous complaint. On 18 August 2015 the Kuzminskiy District Court in Moscow granted the appeal and assigned the case to another justice of the peace.
9. On 1 December 2015 the justice of the peace discontinued the private-prosecution case on the grounds that Ms Tunikova and her counsel had not shown up at the hearing. On 16 March 2016 the Kuzminskiy District Court upheld that decision. It pointed out that Ms Tunikova had been sixteen minutes late for the hearing and that the law did not distinguish between “significant” and “insignificant” tardiness. On 6 July 2016 the Moscow City Court refused Ms Tunikova leave to appeal to the cassation instance.
10. On 26 June 2017 the Kuzminskiy District Court in Moscow found that Ms Tunikova had caused D. grievous bodily harm and that her use of force in self-defence had not been justifiable. She was given a custodial sentence and a fine but exempted from serving it on account of a general act of amnesty.
B. The case of Elena Gershman (application no. 53118/17 lodged on 17 July 2017)
11. The applicant, Ms Elena Vladimirovna Gershman, is a Russian national who was born in 1978 and lives in the Moscow Region. She is represented before the Court by Ms Vanessa Kogan and Mr Egbert Wesselink from the Stichting Justice Initiative, a non-governmental organisation based in Utrecht, the Netherlands.
12. In 2012, Ms Gershman married O. In 2014 their daughter was born.
13. On 23 November 2015 O. kicked and punched Ms Gershman. She complained to the police and underwent a medical assessment which recorded large bruises on her shoulders and ribs. Citing the fact that the injuries did not reach the threshold of gravity required for public prosecution, the police declined to open criminal proceedings. Ms Gershman was told to mount a private-prosecution case for “battery” under Article 116 of the Criminal Code.
14. On 24 January, 5 and 13 March, 5, 16 and 24 April and 3 May 2016 O. assaulted Ms Gershman inside and outside their residence, including in the presence of their daughter. Ms Gershman suffered bruises, abrasions and a concussion which were recorded in medical documents. She reported the events to the police which declined to institute criminal proceedings against O. on account of minor injuries and referred her to a justice of the peace.
15. On 6 May and 16 June 2016 Ms Gershman filed three private-prosecution claims with the justices of the peace in the Vidnoe and Cheremushki districts. She complained of multiple incidents of “battery” within the meaning of Article 116 of the Criminal Code and three assaults occasioning “minor bodily harm” within the meaning of Article 115 of the Criminal Code. Her claims were dealt with as follows.
16. On 29 September 2016 the Vidnoe district justice of the peace referred the complaint concerning five instances of “battery” to the police because the offence of “battery” inflicted by family members had been reclassified as a public-private prosecution offence. On 14 March 2017 the police investigator discontinued the criminal proceedings following another legislative amendment which removed the “battery” inflicted by family members from the sphere of criminal law.
17. On 8 December 2016 the Vidnoe district justice of the peace acquitted O. of two alleged assaults which had taken place on 24 April and 3 May 2016. The justice heard both parties, their respective witnesses, ambulance workers and police officers who had been called to the scene, and examined video recordings of the incidents which were found to contradict Ms Gershman’s account of events. On 1 March 2017 the Vidnoe Town Court upheld the acquittal on appeal.
18. On 13 January 2017 the Cheremushki district justice of the peace acquitted O. in respect of the 5 April 2016 incident in which he had allegedly punched Ms Gershman and caused her to fall on the stairs. The justice held that she had failed to prove that she had not been injured at a later point in time, after the incident had already ended.
19. In parallel proceedings, on 31 May 2016 Ms Gershman asked the police to institute criminal proceedings against O. on the charge of “tormenting” (Article 117 of the Criminal Code). She listed recurrent incidents of ill-treatment and enclosed medical evidence. On 6 June 2016 the police refused her request. They found that O.’s actions did not constitute the offence of “tormenting” because he did not have “the intent to cause systematic injuries” to Ms Gershman. On 26 August 2016 the supervising prosecutor ordered the police to carry out an additional inquiry. The inquiry did not produce any new elements and concluded with the decision declining to open criminal proceedings which was issued on 1 December 2016. The supervising prosecutor set aside that decision on 13 January 2017 and ordered the police, within twenty days, to make an assessment of the gravity of Ms Gershman’s injuries, to obtain a statement from her, and to establish eye-witnesses to various incidents. It is unclear whether the police complied with the prosecutor’s instructions.
C. The case of Irina Petrakova (application no. 27484/18 lodged on 31 May 2018)
20. The applicant, Ms Irina Aleksandrovna Petrakova, is a Russian national who was born in 1980 and lives in Moscow. She is represented before the Court by Ms Mari Davtyan, a lawyer practising in Moscow.
21. Ms Petrakova married A. in 2006 and they had two children, a daughter in 2008 and a son in 2010. They lived together in the flat of which A. was the owner. Between late 2007 and May 2013 A. assaulted Ms Petrakova four times, including when she was pregnant.
22. On 7 September 2014 A. thrashed Ms Petrakova, punching and kicking her and pulling her by the hair. She sought refuge in the flat of her neighbours. The police and an ambulance were called. Doctors took Ms Petrakova to the hospital where she was diagnosed with brain concussion, intracranial injury, and bruises all over her body. Three days later the police declined to institute criminal proceedings, holding that A. had not committed any disorderly acts because no third parties had been involved and that his murder threats had not reached the threshold of being “real”. As battery was a privately prosecutable offence, Ms Petrakova had to pursue charges before a justice of the peace.
23. On 2 December 2014 A. raped Ms Petrakova. She took her children to her girlfriend’s flat and filed for divorce.
24. On 22 December 2014 A. showed up at Ms Petrakova’s new residence and assaulted her. He shouted that he had the right to have sex with her whenever he wanted. Ms Petrakova had her injuries recorded and reported the assault to the police. She also moved to another place. Three days later the police declined to institute criminal proceedings on the same grounds as before.
25. On 15 April 2015 their marriage was terminated. A. was ordered to make child support payments.
26. Between 4 January and 25 April 2015 Ms Petrakova endured six assaults by A. He would pull her hair, pinch her, throw her on the floor and step on her, take away her mobile phone, car keys and identity papers. On 12 March 2015 doctors diagnosed her with brain concussion, intracranial trauma and multiple abrasions.
27. On 28 April 2015 Ms Petrakova sent a request for protection to the head of the district police. She listed the assaults by A., enclosed medical evidence and pleaded for the police to intervene. She submitted that A. had beaten, humiliated and insulted her, that he had threatened to kill her and burn their joint property, and that she lived in constant fear. The police interviewed Ms Petrakova and A. and, on 8 May 2015, issued a decision refusing to institute criminal proceedings which reproduced the text of previous decisions. On 1 July 2015 a supervising prosecutor set that decision aside and ordered an additional inquiry which should have included in particular a medical assessment of Ms Petrakova’s injuries. On 22 July 2015 the police issued an identically worded decision. According to it, obtaining Ms Petrakova’s medical record and commissioning a medical assessment “turned out to be impossible within the set time-limit”.
28. On 10 June 2015 Ms Petrakova reported to the police that A. had taken away her mobile phone and punctured tyres of the car. On 23 June 2015 the hospital informed the police that Ms Petrakova and her girlfriend had been treated for bruises and abrasions. On that day A. assaulted them while an assessment of their property was underway. Each time the police declined to open a criminal case. They used the same wording as before in respect of the assault and stated that the damage to Ms Petrakova’s property was minor.
29. On 5 August 2015 a justice of the peace of the Vykhino-Zhulebino district in Moscow discontinued the private prosecution case which Ms Petrakova had mounted against A. in connection with the assault of 7 September 2014. The justice applied the act of general amnesty which had been declared on the occasion of the 70th anniversary of the Great Patriotic War victory.
30. On 13 October 2015 the supervising prosecutor weighed in on the matter of Ms Petrakova’s complaints. He directed the police to take note of the repetitive nature of A.’s assaults and launch an investigation into the offence of “tormenting” (Article 117 of the Criminal Code). The police opened a criminal case and interviewed Ms Petrakova. She gave a detailed description of twenty-three incidents of assault starting from 2007 and of her unsuccessful applications to the police. She also mentioned that A. owned a rubber-bullet handgun and a hunting rifle. The police obtained medical records, commissioned a medical assessment, interviewed Ms Petrakova’s friends who had witnessed assault, and took statements from A. who accepted in part her description of the events.
31. In parallel civil proceedings, Ms Petrakova sued A. for compensation in respect of non-pecuniary damages. On 8 February 2016, on leaving the court, A. assaulted her, punched her in the face and tore her jacket. On 17 February 2016 the police declined to open criminal proceedings, citing the minor nature of the damage.
32. On 1 April 2016 the investigator in charge of the criminal case issued two decisions. Both decisions reproduced the text of Ms Petrakova’s statement relating to twenty-three incidents of assault. In the first decision, the investigator expressed her view that the systematic element of “tormenting” implied that beatings should be not just repetitive but also “internally consistent with the perpetrator’s desire to cause particularly torturous physical or mental suffering to the victim”. The acts by A. had not contained any such element, they had been “ordinary household conflicts caused by personal animosity in connection with their living under the same roof”. Noting further that Ms Petrakova did not suffer actual bodily harm, the investigator held that three – unspecified – instances of assault should be characterised as “battery” rather than “tormenting”. The second decision refused institution of criminal proceedings in respect of the pre-2010 assaults which had become time-barred.
33. On 21 July and 31 August 2016 justices of the peace of the Ryazanskiy and Vykhino-Zhulebino districts, respectively, discontinued private prosecution cases against A. in connection with the assaults of 23 June 2015 and 8 February 2016. They held that, following their divorce, Ms Petrakova and A. were no longer “family members”, whereas, owing to legislative changes in 2016, battery committed by strangers was not a criminal offence.
34. On 6 September 2016 the justice of the peace of the Vykhino-Zhulebino district found A. guilty of two instances of “battery” with regard to the assaults of 22 December 2014 and 11 March 2015, and sentenced him to 120 hours’ community work. On 18 November 2016 the Kuzminskiy District Court, on appeal by Ms Petrakova’s counsel, quashed both the discontinuation decision of 31 August 2016 and the 6 September 2016 judgment on the grounds of the incorrect legal characterisation of A.’s acts. The matter came back before the justice of the peace which returned it to the prosecutor.
35. On 4 April 2017 the police received the file from the prosecutor. Seven days later they adjourned the proceedings allegedly because A.’s whereabouts could not be established. On 28 April 2017 the adjournment decision was set aside. On 13 May 2017 the investigator issued the decision to discontinue the proceedings by reference to the 2017 changes in the legislation by which battery among family members had been reclassified as an administrative offence.
36. On 17 November 2017 the investigation was resumed. On 25 November and 1 December 2017, first the supervising prosecutor, and later the Kuzminskiy District Court established that the length of the investigation had exceeded a reasonable time, that the decisions of 1 April 2016 had been premature and incomplete, and that there had been no progress in the case since 28 March 2017.
37. On 8 February 2018 the prosecution became time-barred.
D. The case of Margarita Gracheva (application no. 28011/19 lodged on 22 May 2019)
38. The applicant, Ms Margarita Andreyevna Gracheva, is a Russian national who was born in 1992 and lives in the Moscow Region. She is represented by Ms Mari Davtyan.
39. In 2012 Ms Gracheva married D. and they had two children. In 2017, their relationship deteriorated and she decided to ask for divorce.
40. In the night of 30 October 2017 D. checked her mobile phone and accused her of having an affair. He punched and kicked her, tore her passport into pieces and took away her mobile phone. Later on that day, he took her to the district police inspector Sh. to file an application for a new passport. He stayed in the inspector’s office throughout the time it took her to fill in the papers. On the following day Ms Gracheva went to her mother and told her about abuse. Her mother took photos of the injuries and suggested filing a report to the police but Ms Gracheva refused, fearing retaliation against herself and her children.
41. On 3 November 2017 Ms Gracheva moved to her mother’s place, together with the children. She went to see Inspector Sh. and told him that it was her husband who had torn her passport apart. Sh. replied that he knew that D. was “that kind of man”. D. continued to stalk Ms Gracheva in front of her house and followed her movements around town using the feed from public CCTV cameras.
42. On 10 November 2017 Ms Gracheva accepted D.’s offer of a ride. Once in the car, he locked the doors, took away her mobile phone and showed her a knife. He stopped the car in the woods, put the knife to her throat and told her to confess to adultery. He said that he would kill her and dissolve her body in the acid. Eventually, he did not hurt her and drove her to her office.
43. On the following day Ms Gracheva told her mother about the incident. Her mother filed a police complaint on her behalf. District inspector Z. phoned her to arrange a meeting. At 9 p.m. she visited his office and gave a statement about assaults, threats and kidnapping.
44. On 29 November 2017 another district inspector, G., also summoned her to make a statement. He collected photographs of the injuries her mother had made. He repeatedly suggested that Ms Gracheva should withdraw her complaint, claiming that D.’s conduct was a “manifestation of love”.
45. As D. testified later, on or about 1 December 2017 he had developed a plan to punish Ms Gracheva for alleged infidelity by chopping off her hands. He had bought an axe and a set of elastic rings to stop bleeding. He had stashed them in the boot of his car and scouted the woods for a secluded place. After Ms Gracheva filed a petition for divorce, D. put his plan into action. In the morning of 11 December 2017 he took her to the location, tied her hands together and chopped them off. Ms Gracheva went numb with shock and offered no resistance.
46. D. applied elastic bands to limit bleeding and took Ms Gracheva to the emergency ward of the Serpukhov town hospital. From there, he went to the local police and turned himself in. He was eventually charged with kidnapping and threats of death in connection with the incident of 10 November, and with kidnapping and causing grievous bodily injury with respect to the assault of 11 December.
47. On 15 November 2018 the Serpukhov Town Court found D. guilty as charged and sentenced him to fourteen years’ imprisonment. On 21 January 2019 the Moscow Regional Court upheld the conviction on appeal. During the trial, the court heard evidence from district inspectors G. and Z. When asked what protective measures he had recommended to Ms Gracheva, Inspector G. replied that he had suggested her “limiting communication” with D.
48. Ms Gracheva unsuccessfully sought to pursue criminal proceedings against Inspector G. for professional negligence (Article 293 of the Criminal Code). On 21 February 2018 the Serpukhov Investigations Committee accepted to open a criminal case, finding as follows:
“On 8 December 2017 [G.], without initiating a comprehensive review [of the allegations], issued a decision declining the institution of criminal proceedings ... By that decision, [G.] breached Ms Gracheva’s constitutional right to the protection against criminal assault on the part of [D.], in respect of whom criminal proceedings had not been initiated in good time and restrictive measures had not been applied. Those omissions fostered a sense of impunity in [D.] ... and contributed to his forming a plan to commit a serious offence against Ms Gracheva which he actually perpetrated on 11 December 2017 ...”
49. On 21 May 2018 the investigator in charge of particularly important cases in the Moscow Region Investigations Committee decided to close the criminal investigation. He found that Inspector G. and Mr D. had given “concordant evidence” to the effect that, even if criminal proceedings against D. had been instituted and restrictive measures applied, it “would not have altered [D.’s] decision to commit assault on Ms Gracheva”. Inspector G. had not therefore been at fault, as there had been no causal link between his actions and the assault on Ms Gracheva.
50. On 7 June 2018 the supervising prosecutor ordered the investigator to resume the investigation. On 13 October and 30 December 2018 the investigator suspended the proceedings, claiming that he was unable to contact Inspector G. who had gone on a mission to another region.
51. Counsel for Ms Gracheva complained to a court about an ineffective investigation. On 16 May 2019 the Serpukhov Town Court declared itself incompetent to give an assessment of whether or not the investigation had been effective.
E. Recent information on gender-based violence in Russia
52. A 2018 report by Russia’s High Commissioner for Human Rights noted the structural nature of the problem of domestic violence (translated from Russian):
“In the Commissioner’s view, another systemic problem relates to violence against women which, unfortunately, has remained an unacceptable and most cruel form of gender-based discrimination. According to opinion polls, violence against women is an important issue for a majority of Russians (73%). Women (79%) mention its importance more frequently than others. A third of respondents (32%) state that women are as often as not confronted with non-sexual physical violence. Female respondents (38%) mention it more frequently than male (25%). 49% of polled women fear becoming a victim of family violence.
...
It has to be unfortunately stated that the existing legislation is unable to fully protect women against domestic violence. For more than twenty years, society has not reached a consensus whether a law on countering domestic violence is necessary. The World Bank’s [bi]annual report Women, Business and the Law 2018, released on 23 April 2018, ranked Russia among other countries which have inadequate legislation for the protection of women against violence.
For this reason, the Commissioner draws the attention of the Russian Government to the recommendation in her 2017 report in relation to the drafting of a comprehensive federal law ‘On Countering Family Violence’.”
RELEVANT DOMESTIC LAW
53. Chapter 16 of the Russian Criminal Code covers offences against the person, including murder and manslaughter (Articles 105 to 109) and three levels of assault occasioning actual bodily harm (Articles 111 to 115). “Grievous bodily harm” (Article 111) may involve the loss of a body part or the termination of pregnancy; “medium bodily harm” (Article 112) leads to a long-term health disorder or loss of ability to work, and “minor bodily harm” (Article 115) covers injuries that take up to twenty-one days to heal. Causing grievous or medium bodily harm is subject to public prosecution; the offence of “minor bodily harm” is liable to private prosecution, meaning that the institution and pursuance of criminal proceedings is left to the victim, who has to collect evidence, identify the perpetrator, secure witness testimony and bring charges before a court. Private prosecution proceedings can be terminated at any stage up until the delivery of judgment in the event that the victim has agreed to withdraw the charges.
54. Other forms of assault which may cause physical pain without resulting in actual bodily harm are treated as “battery” (побои) under Article 116. This provision has recently been amended a number of times.
55. Up until 3 July 2016 any form of “battery” constituted a criminal offence punishable by a fine, community work, or up to three months’ detention. Aggravated battery could be punished with a longer period of deprivation of liberty. Prosecution of the offence was left to the private initiative of the victim. The law did not differentiate between various contexts in which the offence could be committed, whether within the family or between strangers.
56. On 3 July 2016 the provision was substantially amended.
First, common (non-aggravated) form of battery was decriminalised and reclassified as an administrative offence.
Second, a new form of aggravated battery was created which included battery committed in respect of “close persons”, that is to say spouses, parents, siblings and domestic partners, and was punishable by a deprivation of liberty. That form of battery became subject to a mixed “public-private” prosecution regime which applies to some other offences, such as rape. Proceedings had to be instituted at the victim’s initiative, but the subsequent investigation and prosecution were to be led by the authorities and could not be discontinued, even with the victim’s consent.
Third, a new Article 116.1 was inserted into the Criminal Code. It created a new offence of “repeat battery” defined as battery committed by a person who had been convicted of the same actions in administrative proceedings within the previous twelve months and whose actions did not constitute aggravated battery under Article 116. The offence can only be prosecuted privately and is punishable by a fine or up to three months’ detention.
57. On 7 February 2017 the reference to “close persons” was removed from the definition of aggravated battery in the text of Article 116 for the purpose of decriminalising acts of battery inflicted by spouses, parents or partners. The only remaining forms of aggravated battery now include battery committed for racial, ethnic, social or disorderly (хулиганские) motives.
58. Article 117 of the Criminal Code establishes the offence of “tormenting” (истязание) which is defined as “causing physical or mental suffering by means of systematic beating or other violent actions” which do not result in actual bodily harm. The act of “tormenting” is punishable with up to three years’ deprivation of liberty.
COMPLAINTS
59. The applicants complain under Articles 3, 13 and 14 of the Convention that the domestic authorities had failed to protect them from acts of domestic violence on account of deficiencies in the domestic legal framework and of the absence of legal provisions addressing domestic violence, such as restraining orders. They also complained of the authorities’ failure to put in place specific measures to combat gender-based discrimination against women.
QUESTIONS TO THE PARTIES
1. As regards the alleged violations of Article 3 of the Convention, taken alone or together with Article 13 of the Convention, did the Russian authorities discharge their obligation to protect the applicants against ill‑treatment administered by their partners? In particular,
(a) Did the Russian State discharge the obligation to establish and apply effectively a legislative framework for punishing all forms of domestic violence and providing sufficient safeguards for victims?
(b) Did the Russian authorities discharge the obligation to take the reasonable measures that might have been expected in the circumstances in order to avert a real and immediate risk of ill-treatment to the applicants of which the authorities knew or should have known?
(c) Did the Russian authorities discharge the obligation to conduct an effective and diligent investigation into all instances of ill-treatment which the applicants reported to them?
2. As regards the alleged violation of Article 14 of the Convention, taken in conjunction with Article 3, did the Russian authorities acknowledge the gravity and extent of the problem of domestic violence and its discriminatory effect on women? Did they implement measures for achieving substantive gender equality that would enable the applicants to live free from fear of ill-treatment or attacks on their physical integrity and to benefit from the equal protection of the law?
3. Having regard to the applicants’ situation in the instant case and to the absence of any legislation dealing with the phenomenon of domestic violence in Russia, has there been an underlying systemic problem or a structural deficiency which calls for indication of general measures under Article 46 of the Convention, as interpreted in the light of Article 1 of the Convention?
APPENDIX
List of applications
1.
55974/16
Tunikova v. Russia
2.
53118/17
Gershman v. Russia
3.
27484/18
Petrakova v. Russia
4.
28011/19
Gracheva v. Russia
Full & Egal Universal Law Academy