Failure to protect women from domestic violence is a breach of Article 3 of the Convention – Elliot Gold

19 February 2020 by

The European Court of Human Rights continues to make it clear that a failure by member states to protect people from domestic violence is likely to cross the high hurdle of the prohibition on degrading and inhumane treatment under Article 3.” It isn’t all about women. In the latest decision, Affaire Buturuga v Romania (App No. 56867/15), (available only in French) the Court found a breach of articles 3 and 8 in respect of a failure to investigate adequately and/or take action on complaints of domestic violence and awarded €10,000 general damages.   

Factual background

(References in square brackets are to paragraphs in the judgment). Ms Buturuga was a forty-three year old woman, who said that she had experienced physical violence and threats-to-kill from her husband. She claimed that on 17 December 2013, her husband had threatened to throw her from a balcony to make it look like suicide and that on 22 December 2013, he then hit her head and threatened to kill her with an axe [7]. Ms Buturuga obtained a medical report that stated she required four days treatment for resulting soft-tissue injuries [8]. On 23 December 2013 and again on 6 January 2014, she told the authorities that her (by then ex) husband had subjected her to violence and threats to kill, which complaint the authorities tried to persuade her to withdraw [9].
 
On 13 March 2014, Ms Buturuga successfully applied to the domestic courts for a six-month protection order. The court found as a fact that Ms Buturuga’s ex-husband had assaulted and threatened her [23]. It prohibited Ms Buturuga’s ex-husband from remaining in their home, traveling to Ms Buturuga’s parents, contacting her or coming within 200 metres of her [23]. Nevertheless, the prosecuting authorities dismissed her request, made on 18 March 2014, that they examine her ex-husband’s electronic devices, on her complaint that he was accessing her social media accounts and making copies of her private conversations and photographs [11].
 
On 11 September 2014, Ms Buturga made another complaint that her ex-husband had interfered with her private correspondence. The police interviewed Ms Buturuga’s family, who stated that she had been subjected to violence. Her mother told the police that her daughter had moved back in with her due to fear and that she had seen marks of violence on her [15]. In total, the police took statements from Ms Buturuga’s husband, daughter, sister-in-law and mother [20].
 
The authorities dismissed the allegations of domestic violence on 17 February 2015, on the grounds that the threats of Ms Buturuga’s ex-husband were not serious enough to amount to an offence and that there was insufficient evidence to show that he had caused her injuries [17]. His interference with correspondence was said to be unrelated and, in any event, public information [21].
 
The decision

The European Court of Human Rights repeated that article 3 imposed a duty on member states to take measures to prevent individuals, in particular children and vulnerable adults, from being subjected to torture, inhuman or degrading treatment or punishment, administered by other individuals [60]. Authorities are therefore required to take reasonable action to prevent ill-treatment of which they were or should have been aware and to conduct an effective investigation into arguable claims of ill-treatment where they knew or should have known of a real and immediate risk to an identified individual from the criminal acts of a third party. If so, they were required to take such measures that could reasonably be said to avoid the risk [60]-[61].
 
As to article 8, state authorities were required not only to protect the individual from arbitrary interference from public authorities but also to operate a system to protect individual rights: Barbulescu v Romania (App no 61496/08); [2017] ECHR 754.
 
As to the facts, the court held that the Romanian authorities had failed to examine Ms Buturuga’s complaints from the point of view of domestic violence rather than violence between individuals [66], for which special diligence was required [67]. Even where the authorities had not disputed the seriousness of Ms Buturuga’s injuries, they failed to conduct an adequate investigation into who was responsible for them; the police took witness statements from family members but obtained no evidence as to the origin of the injuries, the persons responsible and failed to speak to additional persons such as neighbours or other witnesses, noting such requirements in EM v Romania (2012) (App no. 43994/05) [68].
 
Although the Romanian government had averred that Ms Buturuga had delayed in making her complaints, the court held that even if this were so, there was no evidence that this made investigation impossible and that, in any event, it was important to take into account the psychological impact in domestic violence cases: Valiuliene v Lithuania (App no. 33234/07); [2013] ECHR 240 [69]. The protections provided by the domestic court’s issuing a protection order were after the violent events and could not remedy the deficiencies in the police investigation [72].
 
There was also a failure to protect Ms Buturuga’s right to privacy. The availability of a private action in tort was inadequate [73]. Furthermore, domestic violence was not limited to mere facts of violence but included psychological violence or harassment. Cyber-violence was a recognised aspect of violence against women and girls, including computer breaches and the taking and sharing of personal data and images. In the context of domestic violence, computer or internet surveillance was often performed by partners and should be taken into account in such investigations [74].
 
In all of those circumstances, the court found a breach of the state’s positive obligations under article 3 and 8. It awarded €10,000 general damages [83].
 
Commentary

In Volodina v Russia (Application No 41261/17); [2019] ECHR 539 – see our blog post here, the ECtHR held that behaviour could amount to domestic violence and fall within the meaning of degrading treatment in article 3, where the victim was humiliated in their own eyes, even if not in the eyes of others. This included not only physical acts but the actions giving rise to adverse psychological impact and feelings of fear, anxiety and powerlessness. Although the court did not cite Volodina in its decision in Buturuga, it has restated those principles.
 
Both Volodina and Buturgua involved men committing acts of serious violence against their female partners that would have satisfied a very high threshold. In Volodina, a woman’s ex-partner damaged her car windscreen and brakes, kidnapped her, physically assaulted her, strangled her, planted a GPS tracker on her, posted private photographs of her and threatened to kill her. In Buturgua, there was a high level of physical violence resulting in soft-tissue injuries, together with extreme threats to kill, data theft and surveillance. In those circumstances, it could be suggested that the wider principles that the court articulated in both cases were unnecessary for the deciding of those particular actions and are not properly reflective of them.
 
The two cases contrast with the judgment of Lavender J in MLIA & CLEL v Chief Constable of Hampshire [2017] EWHC 292 (QB) – see our post here. In that case, the allegations were of assault in the form of the Claimant’s partner spitting at her, throwing things at her, pinning her against walls, hitting her three times with his forearm causing bruising to the upper body and face, subjecting her to verbal abuse, pulling her hair, cutting up her clothes, hitting her forehead and throwing water in her face. He also scratched a swastika on the Claimant’s car, harassed her by repeated telephone calls and text messages (some of which included threats of violence) and made threats to kill [192].
 
Lavender J doubted whether those allegations amounted to a “grave or serious crime” reaching the necessary minimum level of seriousness for the purposes of the Convention [194]. In turn, it might be doubted whether this is in accordance with the ECtHR’s recent jurisprudence – particularly where it refers not to “grave and serious” crimes rather than “criminal acts” of a partner or ex-partner. Volodina said that article 3 covered all forms of domestic violence “without exception” and that even a single blow triggered the obligation to investigate [98]. The clear line of jurisprudence developing from the ECtHR is a low tolerance for domestic violence and liability of the police where they fail adequately to investigate it and take steps to protect persons, particularly women, from it. 

This article by Elliot Gold was first published by Serjeants’ Inn’s UK Police Law Blog

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