VALIULIENE v. LITHUANIA - 33234/07 - HEJUD [2013] ECHR 240 (26 March 2013)

CONCURRING OPINION OF JUDGE
PINTO DE ALBUQUERQUE

In Valiuliene the Court is again confronted with the excruciating question of domestic violence. The legal relevance of lesser forms of violence such as verbal abuse and minor bodily injuries, the failure to acknowledge the public interest of prosecuting this form of ill-treatment and the final dismissal of the criminal case owing to the statute of limitations give to this case all the ingredients of a leading case, raising fundamental legal issues which have not been dealt with properly by the majority. With all due respect, the majority said too much in some respects and yet not enough in others. This is why I voted for the operative part of the judgment, but cannot subscribe to its motivation.

Domestic violence as a human rights violation

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) aimed to prevent discrimination against women in the public as well the private sphere, not violence against women.[1] In 1984 the U.N. Economic and Social Council passed Resolution 1984/14 on violence in the family. Based on this resolution, the U.N. General Assembly adopted Resolution 40/36 on domestic violence one year later, inviting States to take specific action urgently in order to prevent domestic violence and to render the appropriate assistance to the victims thereof. In 1990, the UNGA passed Resolution 45/114, addressing the public and if necessary criminal response to domestic violence. In 1993 the UNGA Declaration on the Elimination of Violence Against Women[2] defined violence against women as including any public or private act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, and enjoined States to exercise due diligence to prevent, investigate and punish acts of violence against women, whether those acts are perpetrated by the State or by private persons. For the very first time, an international instrument referred to violence against women as a human rights violation and formally enshrined the due diligence clause as the applicable standard for the prevention and protection of the right of women to physical integrity and psychological well-being. In the same year, the General Assembly of the Organization of American States adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (the Belém do Pará Convention), which sets out States’ duties relating to the eradication of gender-based violence.[3] In 1995 the Fourth World Conference on Women made the elimination of violence against women one of its twelve strategic objectives and suggested concrete actions to be taken by States and non-State actors. In 2000 the Human Rights Committee General Comment no. 28 on Equality of Rights Between Men and Women interpreted Article 3 of the International Covenant on Civil and Political Rights as requiring proactive conduct by States to ensure to men and women equally the enjoyment of all rights provided for in the Covenant in both the public and the private sectors and, in order to assess compliance with Articles 7 and 24 of the Covenant, enjoined States parties to provide information on national laws and practice with regard to domestic and other types of violence against women[4]. The same year, the Committee on the Elimination of Racial Discrimination issued General Recommendation no. 25 on gender-related dimensions of racial discrimination, admitting that certain forms of racial discrimination affect women more intensely than men. In 2002, in its First World Report on Violence and Health, the World Health Organization discussed the health and economic consequences of and the responses to domestic violence as a human rights violation. In 2003 an Additional Protocol to the African Charter on Human and People’s Rights on the Rights of Women was approved, including new structural or economic forms of violence against women, such as unequal rights in marriage, polygamy, negative media campaigns, and traditional and religious practices which treat women as second-class citizens. In 2005 the Committee on Economic, Social and Cultural Rights issued General Comment no. 16 on The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights, stating that gender-based violence is a form of discrimination that inhibits the ability to enjoy rights and freedoms, including economic, social and cultural rights, on a basis of equality, and that States parties must take appropriate measures to eliminate violence against men and women and act with due diligence to prevent, investigate, mediate, punish and redress acts of violence against them by private actors, as well as provide victims of domestic violence, who are primarily female, with access to safe housing, remedies and redress for physical, mental and emotional damage. In her third report, of 20 January 2006, the Special Rapporteur on violence against women Yakin Ertürk considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”.[5] In 2008 the Council of the European Union adopted the “EU guidelines on violence against women and girls and combating all forms of discrimination against them”. In her first report, of 23 April 2010, the Special Rapporteur on violence against women Rashida Manjoo considered that the obligation to provide adequate reparations to the victims involves ensuring the rights of women to access to both criminal and civil remedies and the establishment of effective protection, support and rehabilitation services for survivors of violence.[6] Finally, in 2011 the Committee of Ministers of the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence, which not only distinguishes both concepts, but includes among the victims of domestic violence any natural person who is subjected to the violent conduct.[7] The due diligence clause is designed as an obligation of means, not of result.[8]

Against the backdrop of these developments in international law, which are supported by the findings of modern psychology,[9] it can be concluded that domestic violence has emerged as an autonomous human rights violation consisting in the commission of physical, sexual or psychological harm, or the threat or attempt thereof, in private or public life, by an intimate partner, an ex-partner, a member of the household, or an
ex-member of the household.[10] Yet a human rights litigation approach to domestic violence faces three strong conceptual obstacles, all of them very well entrenched in the history of democratic societies: respect for privacy, tolerance vis-a-vis different cultures and the upholding of the rights of defendants. The classical human rights approach focuses on violations occurring in the public arena, which clearly disadvantages victims of domestic violence since this frequently occurs in the hidden private sphere of the family or other forms of intimate relationship.[11] In regard to some ethnic groups that disadvantage is compounded by a pretentious cultural relativism, according to which certain traditional practices should be tolerated in the name of respect for different cultures, even though those practices may constitute forms of discrimination and even ill-treatment.[12] Moreover, courts and scholars are traditionally more attentive to ensuring the effectiveness of the defendant’s rights than to protecting those of the victims, the common belief being that the former should always be prioritised over the latter.[13] These obstacles can only be overcome by breaking the classical public-private divide and acknowledging the State’s positive obligation to act against domestic violence. States have the obligation not only to bring to justice the alleged offenders and empower the victims of domestic violence with an active role in the criminal proceedings, but also to prevent private actors from committing or reiterating the offence and provide elementary social support measures to victims, such as post-traumatic care and shelter. Such an international positive obligation must be acknowledged, in view of the broad and long-lasting consensus mentioned above, as a principle of customary international law, binding on all States. This is a fortiori true in the case of violence against women. Domestic violence is basically violence against women.[14] All the available data shows worldwide that domestic violence is in the vast majority of cases violence perpetrated by men against women, and violence by women against men accounts for a very small percentage of domestic violence.[15]

Hence, the full effet utile of the European Convention on Human Rights (the Convention) can only be achieved with a gender-sensitive interpretation and application of its provisions which takes in account the factual inequalities between women and men and the way they impact on women’s lives.[16] In that light, it is self-evident that the very act of domestic violence has an inherent humiliating and debasing character for the victim, which is exactly what the offender aims at. Physical pain is but one of the intended effects. A kick, a slap or a spit is also aimed at belittling the dignity of the partner, conveying a message of humiliation and degradation.[17] It is precisely this intrinsic element of humiliation that attracts the applicability of Article 3 of the Convention.[18] The imputation of an Article 8 violation would fall short of the real and full meaning of violence in the domestic context, and would thus fail to qualify as a “gendered understanding of violence”.[19]

The reviewed Osman test in domestic violence

One of the most problematic aspects of the State’s positive obligation is the definition of the exact ambit of its duty to prevent and protect. The Court has developed the so-called Osman test, which normally assesses if the authorities knew, or ought to have known at the time, of the existence of real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Put simply, the State answers for the wrongful conduct of non-State actors when their conduct was foreseeable and avoidable by the exercise of State powers.[20] The heart of the dispute in the current case lies in the adequateness of this standard to the particular situation of domestic violence. Realistically speaking, at the stage of an “immediate risk” to the victim it is often too late for the State to intervene. In addition, the recurrence and escalation inherent in most cases of domestic violence makes it somehow artificial, even deleterious, to require an immediacy of the risk. Even though the risk might not be imminent, it is already a serious risk when it is present. A more rigorous standard of diligence is especially necessary in the context of certain societies, like Lithuanian society, which are faced with a serious, long-lasting and widespread problem of domestic violence. Thus, the emerging due diligence standard in domestic violence cases is stricter than the classical Osman test, in as much as the duty to act arises for public authorities when the risk is already present, although not imminent.[21] If a State knows or ought to know that a segment of its population, such as women, is subject to repeated violence and fails to prevent harm from befalling the members of that group of people when they face a present (but not yet imminent) risk, the State can be found responsible by omission for the resulting human rights violations. The constructive anticipated duty to prevent and protect is the reverse side of the context of widespread abuse and violence already known to the State authorities.

The public interest in the prosecution of domestic violence

The second major problem raised by the current case is the failure, under the successive applicable prosecution regimes of the old and the new (2003) Code of Criminal Procedure, to acknowledge the “public interest” of prosecuting this form of ill-treatment, with the final dismissal of the case due to the statute of limitations. The Court has already rejected the suggestion that the Convention right to physical integrity could only be secured with public prosecution in all cases of domestic violence, but it was not satisfied either with a Bulgarian law that allowed room for public prosecution of domestic violence only in “exceptional cases”.[22] In fact, both the new Council of Europe Convention on domestic violence, Article 55, and the previous Recommendation Rec (2002), paragraphs 38 and 39, as well as the CEDAW General Recommendation No. 28 on the core obligations of States parties under Article 2 of the Convention, paragraph 34, establish the preference for a public prosecutable offence which is not entirely dependent on the will of the victim, in regard either to the initiation of the proceedings or to the withdrawal of the complaint. The reason is crystal-clear: in most cases, to place the victim of domestic violence in the unbearable quandary of having to decide for herself whether she wants to harm the family/intimate relationship through private prosecution is to perpetuate the subordinate position of the victim, and therefore, the violence itself, because she is evidently not in a position of freedom to make that choice due to her state of dependency on the offender.[23] In other words, the requirement of a victim to act as a private prosecutor, which reflects the misconception of violence between members of a family/intimate relationship as “private business”, is not compatible with the above-mentioned international obligation to protect.

The application of the Convention standard to the present case

The applicant and JHL had lived together as a couple since 1996. In 2001, the applicant complained of having been beaten by JHL in her apartment. In 2005, the public prosecutor considered as “established” that the applicant had been strangled, hit and kicked on five separate occasions between January and February 2001, although in none of these cases had she sustained any long-lasting injuries or unfitness to work. On all these occasions, she was also verbally abused with insults and threats. These facts, which undoubtedly constitute a breach of the applicant’s physical integrity and psychological well-being, attained per se the level of seriousness required for Article 3 of the Convention, since the violent episodes endured by the applicant violated not only her right to privacy but also her Convention right not to be ill-treated, abused and humiliated.

The question of State liability for these acts must be assessed against the background of general abuse of women in Lithuanian society.[24] Since the violation was the work of a private person, and the domestic public authorities had knowledge of the present risk she was facing, the respondent State had a positive obligation to protect the applicant. In fact, at least on 7 January, 15 January and 4 February 2001, the applicant told the police that she had been verbally abused by her partner and had been obstructed when entering her apartment.[25] Repeated verbal abuse like insults and threats is a sufficient cause to trigger the positive obligation to protect the applicant’s physical and psychological integrity under Article 3. The lack of adequate reaction by the police authorities, who only took note of the incidents, leaves much to be desired, falling foul of the requirement to intervene “in a proactive way in order to gather evidence” of violence.[26]

There was also a procedural violation since the domestic proceedings were not only unduly delayed, but even worse, severely flawed. The police investigation was twice considered insufficient, and had to start again following an order of the competent public prosecutor. This inadmissible waste of time was aggravated by a new delay of two years, which was the time the public prosecutor took to decide to discontinue the investigation, not for lack of evidence of the alleged offences, but for lack of reason for a public prosecution. In fact, the discontinuation decision was only taken on 10 June 2005, in spite of the fact that its ground was already apparent when the new criminal code entered into force in 2003. Although the applicant launched a private prosecution immediately after the district court confirmed the public prosecutor’s discontinuation decision, the case was dismissed again on the basis of the applicable statute of limitations.[27] In view of the obvious risk of prescription, the minimum the public interest commanded in June 2005 was that the prosecutor continue the proceedings. The wrongful decision of the public prosecutor not to prosecute the case, in conjunction with the time-bar on the private prosecution, stood in the way of JHL’s full accountability for his alleged offences.[28]

Conclusion

Poor Loreta, who had to endure the repeated attacks of her bullying and intemperate partner, and was left without justice![29] The new Law on protection against domestic violence came too late for her. It is high time now to assert her human rights. Having in account the international obligation to prevent and protect from domestic violence, the reviewed Osman test and the public interest in the prosecution of the applicant’s case, and the failure of the respondent State to meet its obligations, I find that there was a substantive and a procedural violation of Article 3.

DISSENTING OPINION OF JUDGE JOČIENĖ

1. Violence against women, in particular domestic violence, can be described as a phenomenon of public importance which is a common problem not only in Lithuania but all over the world. Many important steps have been taken by international organisations (in both the United Nations and the Council of Europe framework) to combat violence against women, including domestic violence, to respond promptly to threats of domestic violence, to take preventive measures in this field and to provide effective and appropriate assistance to the victims of such crimes (see paragraphs 38-41 of the judgment; see also a summary of relevant international material in the Court’s judgment in Opuz v. Turkey, no. 33401/02, §§ 72-86, ECHR 2009, in particular Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe, of 30 April 2002, on the protection of women against violence).

2. In that Recommendation the Committee of Ministers stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention. The Committee of Ministers also recommended, in particular, that member States should penalise serious violence against women, and recommended that the member States classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, by banning the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol so that the police and the medical and social services follow a set procedure.

3. According to the new Convention on Preventing and Combating Violence against Women and Domestic Violence, adopted by the Council of Europe on 7 April 2011 (not yet ratified by the Republic of Lithuania), the States must also take the necessary legislative and other measures to ensure that the intentional conduct of committing acts of physical violence against another person is criminalised, and also to ensure that effective investigations and judicial proceedings in relation to all forms of violence are carried out without undue delay and the people responsible are punished (see Articles 1, 3, 5, 35 and Chapter VI of the 2011 Convention).

4. In the case of Bevacqua and S. v. Bulgaria (no. 71127/01, §§ 53, 66, 77-84, 12 June 2008) the Court also relied on the position taken by the Commission on Human Rights of the UN Economic and Social Council (E/CN.4/2006/61; 20 January 2006), where the Special Rapporteur on violence against women considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”. This conclusion was based mainly on analysis of developments in the case-law of several international bodies, including our Court (reference to Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII), the Inter-American Court of Human Rights (reference to the case of Velasquez Rodriguez v. Honduras), the Inter-American Commission of Human Rights (reference to Report no. 54/01, Case 12.051, Maria da Penha Maia Fernandes (Brazil)) and the committee monitoring the UN Convention on the Elimination of All Forms of Discrimination against Women (reference to the case of A.T. v Hungary - 2005).

5. Domestic violence is a common phenomenon and a very sensitive issue in Lithuanian society (see § 40 of the judgment). The Committee on the Elimination of Discrimination against Women in its Concluding Observations concerning Lithuania (8 July 2008) noted the various efforts undertaken by the State party to combat violence against women, including domestic violence, ... including the adoption of the National Strategy for Combating Violence against Women, a number of recent amendments to the Criminal Code, the establishment of a network of crisis centres and the extension in 2008 of a specialised help-line service for battered women countrywide to a continuous 24-hour round-the-clock service.

6. However the Committee also noted that no specific law had been adopted in Lithuania to combat violence against women and grant full and effective protection to the victims, and expressed concern at the high prevalence of violence against women in Lithuania, in particular domestic violence (see paragraph 39 of the judgment).

7. Therefore the adoption on 26 May 2011 by the Seimas of the Republic of Lithuania of the Law on Protection Against Domestic Violence (Apsaugos nuo smurto artimoje aplinkoje įstatymas), which entered into force on 15 December 2011, can be regarded as an important positive step forward in the effort to effectively protect people against domestic violence (see § 62 of the judgment). The Law acknowledges that domestic violence is a violation of an individual’s human rights and freedoms (Article 1) and provides some legal footing for the police to react effectively to instances of domestic violence. It is not the responsibility of the victim to lodge a complaint (Article 7 § 1).

8. With the adoption of this Law, Lithuania has fully endorsed the recommendation made by the Committee on the Elimination of Discrimination against Women to introduce a specific law on domestic violence (see paragraph 39 of the judgment).

9. However, while the adoption of the Law in question is an important step forward, it is not in itself sufficient to combat such a sensitive and widespread phenomenon in Lithuanian society.[30] All necessary and appropriate steps must be taken at all levels by the competent Lithuanian authorities in order effectively to implement the newly enacted Law on Protection against Domestic Violence in practice. I hope that the country will take all the necessary steps to condemn and eliminate all forms of violence against women, including domestic violence, in an effort, according to the wording of the Preamble of the 2011 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence “to create a Europe free from violence against women and domestic violence”.

10. Turning to the main legal issue raised by the present case, that is to say, whether the State fulfilled its positive obligation under the Convention to take all necessary measures in order to protect the applicant from the alleged sustained domestic violence, in my personal opinion the Court has incorrectly relied on Article 3 in the circumstances of the present case. This position of the Chamber is not supported by the Court’s case-law, where domestic violence cases are mostly examined from the perspective of Article 8 of the Convention.

11. Accordingly, and referring to the Court’s case-law on the subject, in my personal opinion, the applicant’s complaint in connection with the physical attacks on her should have been examined under Article 8 of the Convention and the applicant’s right to respect for her private life (see Bevacqua and S. v. Bulgaria, cited above, §§ 66, 77-84; Sandra Janković v. Croatia, no. 38478/05, §§ 31, 44 and 45, 5 March 2009; Hajduová v. Slovakia, no. 2660/03, §§ 45-46, 30 November 2010; and, most recently, Kalucza v. Hungary, no. 57693/10, §§ 13, 14, 16, 23 and 42, 24 April 2012), as this concept, as the Court has previously held in various contexts, also includes a person’s physical and psychological integrity (see X and Y v. the Netherlands, 26 March 1985, §§ 22 and 23, Series A no. 91; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247-C; and Sandra Janković, cited above, § 45).

12. Of course, I can accept that in the specific circumstances of certain cases the authorities’ positive obligations under the Convention can vary and can also attract the application of either Article 2 or Article 3, while in other cases the Court could rely on Article 8 taken alone or in combination with Article 3 (see Bevacqua and S. v. Bulgaria, cited above, §§ 65, 12 June 2008, where the Court relied on Article 8 of the Convention as regards the State’s positive obligation to protect the applicant and her son from the aggressive behaviour of her former husband; Opuz v. Turkey, cited above, §§ 72-86, where the Court relied on Articles 2, 3 and even 14 of the Convention as regards the State’s positive obligation to protect people from domestic violence; or the Osman judgment, cited above, §§ 128-130, where the Court applied Article 2 and 8 of the Convention as regards the State’s positive obligation to take adequate and appropriate steps to protect the lives of the second applicant and his father from the alleged real and known danger).

13. In the present case the applicant relied in her application form on Articles 6 and 13 of the Convention only. As I have already said, I can accept that in some specific circumstances the State’s failure to investigate violence inflicted by private individuals and/or to put in place effective criminal-law provisions to deter the commission of offences against personal integrity can demand the application of Article 3 of the Convention (see Beganović v. Croatia, no. 46423/06, §§ 64-71, 86-87, 25 June 2009); and this requirement can also be extended to ill-treatment administered by private individuals (see Šečić v. Croatia, no. 40116/02, §§ 49- 60, 31 May 2007). In some cases even Article 2 can be affected when acts of violence or domestic violence which the competent authorities fail to stop end in the death of the victim (see the Opuz case cited above, §§ 136 and 145-149, where the Court also relied on Article 2 and found a violation of that Article, and, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 95-97, ECHR 2005-VII).

14. Turning to the circumstances of the present case, I think that the attacks against the applicant did not attain the minimum level of severity to fall within the scope of Article 3 (see, on this point Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV; Selmouni v. France, [GC], no. 25803/94, § 100, ECHR 1999-V; and contrast Beganović, cited above, §§ 64-66, 68, and Opuz, cited above, §§ 9, 10, 13, 20, 23 and 161). In particular, in the Valiulienė case, although the applicant was beaten by her live-in partner on five occasions, each time she sustained only minor health impairment, which did not cause any short-term health problems (see paragraphs 7 and 8 of the judgment). The injuries sustained by the applicant were without any lasting consequences and did not result in her being unfit to work (contrast Iljina and Sarulienė v. Lithuania, no. 32293/05, §§ 11 and 47, 15 March 2011, where the Court, when finding a violation of Article 3, specifically took into account the fact that a forensic expert had deemed her to be unfit for work for 9 days).

15. Accordingly in the particular circumstances of the present case (very minor injuries), I cannot accept that the applicant was subjected to illtreatment which was sufficiently serious to be considered inhuman and degrading and thus to fall within the scope of Article 3 of the Convention (see, most recently, Kalucza, cited above, §§ 13, 14, 16, 23, 61 and 62, 24 April 2012, and also Bevacqua and S., cited above, §§ 66, 77-84, 12 June 2008). In my opinion, taking into account its specific circumstances, the case should have been examined exclusively under Article 8 of the Convention, and the Government’s unilateral declaration, submitted under Article 8 of the Convention (paragraph 5 of the judgment), should have been accepted.

16. However, the Chamber decided to examine the case under Article 3 of the Convention, so, in my opinion, the compensation for non-pecuniary damage under Article 41 should have been increased.

[1] It was only in 1989 that the CEDAW Committee included violence against women within its remit. General Recommendation no. 12 considered that States parties had to protect women against violence within the family, at the workplace and in any other area of social life and should include in their periodic reports to the Committee information on various topics related to this issue. Three years later, General Recommendation no. 19 confirmed that gender-based violence breached gender equality and that the “full implementation of the Convention required States to take positive measures to eliminate all forms of violence against women.” In A.T. v. Hungary, Communication no. 2/2003, 26 January 2005, the CEDAW Committee found that the rights of the author under Articles 5 (a) and 16 of the 1979 Convention had been violated owing to the fact that, after having been battered by her former common-law husband, she had been unable, either through civil or criminal proceedings, to temporarily or permanently bar him from the apartment where she and her children continued to reside. The Committee based its finding on the State’s positive obligation to ensure effective equality between the sexes. This reading was confirmed in Goecke v. Austria, Communication no. 5/2005, 6 August 2007; Fatma Yıldırım v. Austria, Communication no. 6/2005, 1 October 2007; V.K. v. Bulgaria, Communication no. 20/2008, 17 August 2011; Cecilia Kell v. Canada, Communication no. 19/2008, 26 April 2012; and Isatou Jallow v. Bulgaria, Communication no. 32/2011, 28 August 2012. The issue of domestic violence has been addressed in many Concluding Observations of CEDAW as well (for example, on New Zealand, 2012, paras. 22-24, Mexico, 2012, paras. 11-12, Mauritius, 2011, paras. 20-23, and Australia, 2010, paras. 28-29).

[2] G.A. Res. 48/104, A/48/49.

[3] In Maria da Penha Maia Fernandes v. Brazil, Case 12.051, Report no. 54/01, 16 April 2001, the Inter-American Commission of Human Rights found that the Brazilian State had failed to exercise due diligence to prevent and investigate a domestic violence complaint, this failure warranting a finding of State responsibility under the American Convention and the Belém do Pará Convention. More recently, in Jessica Lenahan (Gonzales) et al. v. United States, Case 12.626, Report no. 80/11, 21 July 2011, the Commission held the US responsible for the systematic violation of its international obligation to protect individuals from domestic violence. The Inter-American Court also found, in Gonzales et al. (“Cotton Field”) v. Mexico, 16 November 2009, that the Mexican authorities had failed to prevent and investigate the rape and murder of circa 600 women in Ciudad Juarez.

[4] Thus, according to the Committee, domestic violence could constitute a violation of the right not to be ill-treated under Article 7. Domestic violence has been a major concern of the Committee, as evidenced in numerous Concluding Observations, such as on the Russian Federation, 2010, para. 10, Moldova, 2009, para. 16, Denmark, 2008, para. 8, Mauritius, 2005, para. 10, Uzbekistan, 2005, para. 23, Iceland, 2005, para. 12, Benin, 2005, para. 9, Albania, 2004, para. 10, Poland, 2004, para. 11, Morocco, 2004, para. 28, and Yemen, 2002, para. 6.

[5] Due diligence standard as a tool for the elimination of violence against women, Report of the Special Rapporteur on violence against women, E/CN.4/2006/61, para. 29, citing CEDAW General Recommendation no. 19, para. 9; the Declaration on the elimination of violence against women, Article 4 (c); the 1995 Beijing Platform for Action, paragraph 125 (b); and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, Article 7 (b). According to the Special Rapporteur, due diligence requires States to use the same level of commitment in preventing, investigating, punishing and providing remedies for acts of violence against women as they do with other forms of violence (para. 35).

[6] Reparations to Women Who Have Been Subjected to Violence, Report of Special Rapporteur on Violence Against Women, A/HRC/14/22 (2010). This position corresponds to the general consensus of the international community, as results from CEDAW General Recommendation no. 28 on the core obligations of States parties under Article 2 of the Convention, para. 34; CEDAW, General Recommendation no. 19, cited above, para. 23 (t), (iii); the Declaration on the Elimination of Violence Against Women, Article 4 (g); the 1995 Beijing Platform for Action, para. 125 (a); the Report of the Special Rapporteur on violence against women, Yakin Ertürk, para. 83; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, Article 7 (f) and (g); the Additional Protocol to the African Charter on Human and People’s Rights on the Rights of Women, Article 4 (2) (f); the EU guidelines on violence against women and girls, para. 3.2.7.1.; the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, Articles 20 and 23; WAVE, “More than a roof over your head: A survey of quality standards in European women’s refuges, 2002; the HRC Concluding Observations on the Russian Federation, 2009, para. 10, on Moldova, 2009, para. 16, and on Croatia, 2009, para. 8, and the critiques on the lack of shelter places for the victims in the cases of A.T. v. Hungary and Goecke v. Austria.

[7] ETS. No. 210. This new instrument of international law is crucial in interpreting the States parties’ obligations under the European Convention on Human Rights, even though it has only been ratified by three of them until now, not including the respondent State (for a justification of this method of interpretation, see my separate opinions in De Souza Ribeiro v. France (GC), footnote 10, and Tautkus v. Lithuania, footnote 16). This is particularly obvious since this instrument was approved following a call of the Council of Europe Task Force to Combat Violence against Women for a legally binding convention on, inter alia, domestic violence (Final Activity Report, 2008) and the issuance of several recommendations of the Committee of Ministers, such as Recommendation No. R (85) 4 on violence in the family, Recommendation No. R (90) 2 on social measures concerning violence in the family, and Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence. Lastly, the new instrument also took in account the Court’s case-law on an enforceable and justiciable positive obligation to protect women from domestic violence, established in Kontrova v. Slovakia, no. 7510/04, 24 September 2007; Bevacqua and S v. Bulgaria, no. 71127/01, 12 September 2008; Branko Tomasic and Others v. Croatia, no. 46598/08, 14 October 2010; Opuz v. Turkey, no. 33401/02, 9 September 2009; E.S. and Others v. Slovakia, no. 8227/04, 15 December 2009; A. v. Croatia, no. 55164/08, 14 October 2010; and Hajduova v. Slovakia, no. 2660/03, 30 November 2010.

[8] Convention on Preventing and Combating Violence against Women, Article 5 (2) and Explanatory report, para. 59.

[9] In regard to the causes and effects of domestic violence, as well as the available prevention, outreach and redress programmes see, inter alia, Judd, Domestic violence sourcebook, Detroit, Omnigraphics, 2012; Preventing intimate partner and sexual violence against women: taking action and generating evidence. Geneva, World Health Organization, 2010; Walker, The battered woman syndrome, New York, Springer, 2009; Estimating the costs and impacts of intimate partner violence in developing countries: a methodological resource guide, Washington, International Center for Research on Women, 2009; McCue, Domestic Violence: A Reference Handbook, Santa Barbara, ABC-CLIO, 2008; Shipway, Domestic violence: a handbook for health professionals, London, Routledge, 2004; Violence against women: impact of violence on women’s health, Ottawa, Health Canada, 2002; Tjaden and Thoennes, Extent, nature and consequences of intimate partner violence: Findings from the national violence against women survey, US Department of Justice, 2000; Jacobson and Gottman, When Men Batter Women, New Insights into Ending Abusive Relationships, New York, Simon & Schuster, 1998; and Jasinski and Williams (eds.), Partner Violence: A Comprehensive Review of 20 Years of Research, Thousand Oaks, CA, Sage, 1998. The Court used the findings of modern psychology to support a common European standard, for example, in M.C. v. Bulgaria, no. 39272/98, § 164, 4 December 2003. I followed that approach also in my separate opinion in Konstantin Markin [GC], footnote 21.

[10] The concept of “domestic violence” is thus broader than “intimate partner violence”, since it includes child or elder abuse, or abuse by any member of a household. It also encompasses violence occurring in formal or informal partnerships, including same-sex partnerships, and after the cessation of the partnership (see Kalucza v. Hungary, no. 57693/10, § 67, 24 April 2012). The violence may assume the form of a continuum or a one-off incident. Violence against women can evidently occur within and outside the context of domestic violence. The case at hand lies in the intersection of these two forms of violence, i.e. domestic violence against women.

[11] See, for instance, the Yakin Ertürk report, cited above, para. 59.

[12] Again, the Yakin Ertürk report, cited above, para. 66, and Explanatory report of the Council of Europe Convention on Preventing and Combating Violence against Women, para. 216.

[13] For the opposite stance, see Opuz, cited above, § 147: “perpetrators’ rights cannot supersede victims’ rights to life and physical and mental integrity”. This statement can also be found in Fatma Yildirim, cited above, para. 12.1.5.

[14] As the Special Rapporteur on violence against women put it, “even though all women are at risk of experiencing violence, not all women are equally susceptible to acts of violence” (Rashida Manjoo’s Report on Multiple and intersecting forms of discrimination and violence against women, A/HRC/17/26 (2011). While pregnant, disabled, of minor age, elderly, displaced, migrant, refugee, or illiterate women are particularly vulnerable (see a non-exhaustive list in paragraph 87 of the Explanatory Report of the Council of Europe Convention on Preventing and Combating Violence against Women), any other woman may be vulnerable too if confronted with a bullying and violent partner. Furthermore, the Court has underlined, in general terms, the “particular vulnerability of the victims of domestic violence” since the very first judgments on domestic violence (see Bevacqua and S., cited above, § 65, and Opuz, cited above, § 132). Thus, I cannot accept the line of reasoning presented in paragraph 69 of the judgment.

[15] Ever since CEDAW Recommendation no. 19, it has been widely acknowledged that violence between intimates affects women disproportionately, demarcating women as a group in need of proactive State protection. The same conclusion was reached, for instance, in the UN Secretary-General’s In-depth Study on All Forms of Violence Against Women, 2006, and the UNICEF report on Domestic Violence Against Women and Girls, Innocenti Digest, volume 6, 2000.

[16] As the UN Report on Violence Against Women in the Family had already stated in 1989, and the 1995 Beijing Platform for Action, para. 118, repeated, violence against women is a manifestation of historically unequal power relations between men and women. This inequality is fuelled by old fashioned prejudice about the role of women in society, as has been repeatedly noted (for example, CEDAW General Recommendation no. 19, para. 11, and Inter-American Commission of Human Rights, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser.l/V/II, Doc. 68, 20 January 2007, para. 147). Since it is aimed to counter these real factual inequalities, the said gender-sensitive interpretation cannot be accused of patronising women as a stereotyped group of persons unable to protect themselves and in need of public protection. This differential legal treatment has therefore an “objective justification” in the sense affirmed in the Belgian Linguistic case (“certain legal inequalities tend only to correct factual inequalities”; see the same underlying idea in Article 4 (4) of the Council of Europe Convention on preventing and combating violence against women and domestic violence, HRC General Comment no. 18 on non-discrimination, para. 10, and CESR Comment no. 16, paras. 7 and 8). Conversely, a gender-blind interpretation of the Convention would only reinforce the prevailing inequalities that affect women.

[17] As confirmed by some of the research listed in footnote 9.

[18] The majority missed the opportunity to set out a principled reasoning to impute a violation of Article 3, and not of Article 8, to the respondent State, preferring once again to remain attached to the particular specificities of the case. Yet that reasoning was much needed in view of the current disparate case-law. In Bevacqua, Sandra Jankovic, and A. v. Croatia, the Court found a violation of Article 8 (bodily injuries), as well as in Hadjuova (threats), but in Opuz it found a violation of the applicant’s mother’s Article 2 right (killing) and the applicant’s Article 3 right (bodily injuries) and of Article 14 in conjunction with both Articles 2 and 3, and in Kontrova a violation of Articles 2 and 13 (killing). In E.S. and Others v. Slovakia, it found a violation of both Articles 3 and 8 (physical violence)! Finally, Kalucza appears to be a special case of an Article 8 violation, since there were mutual bodily injuries and verbal abuse. These different interpretations of the Convention are obviously not irrelevant, for compensation and other purposes. Moreover, having rejected the respondent Government’s unilateral declaration, which acknowledged a violation of Article 8, the Court had an additional duty to provide a thorough reasoning of its finding of a violation of Article 3.

[19] The expression is used in Article 18 (3) of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. It is important to note that the Court protects victims of domestic violence and female victims of violence regardless of any discriminatory intent of the offender. That is the reason why normally no additional article 14 violation is to be found in cases of female victims. Nevertheless, there might be situations where domestic violence and violence against women are perpetrated also with a specific discriminatory intention in regard to the victim, for example by denigrating her race or ethnic origin. In these cases, there will be a violation of both Articles 3 and 14.

[20] Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII. The Court has applied this standard in domestic violence cases (see for instance, Opuz, cited above, § 130, and Hajduova, cited above, § 50). The exact same criterion has been adopted on the other side of the Atlantic by the Inter-American Court (see the Cotton Field case, cited above, para. 282, and the Case of the Massacre of Pueblo Bello judgment, 31 January 2006, para. 152).

[21] The claim that domestic authorities should exercise an “even greater degree of vigilance” in view of the “particular vulnerability of victims of domestic violence”, made in Hajduova, cited above, § 50, corresponds in substance to this stricter standard.

[22] Bevacqua, cited above, § 82, and Sandra Jankovic v. Croatia, no. 38478/05, § 50, 5 March 2009. In the same vein, the ECJ concluded, in its judgment on the joined cases Magette Gueye and Valentin Salmeron Sanchez (C-483/09 and C-1/10), that the mandatory imposition of injunctions to stay away for a minimum period on persons who commit violence within the family did not breach Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings, even when they were opposed by victims.

[23] The Court has already considered that it is in the public interest to prosecute even in a case where the victim withdraws the complaint (Opuz, cited above, § 139).

[24] According to the data from the Government of the Republic of Lithuania’s Department of Statistics, 408 women and 69 men suffered violence from their spouses or cohabitants in 2007, and 359 women and 60 men suffered violence from their spouses or cohabitants in 2008. This data shows that women are victims of domestic violence six times more often than men (Domestic Violence in the South Baltic Region, Kaliningrad, Lithuania, Poland and Sweden, South Baltic - Violence Free Zone project report, September 2010, p. 20). On the evidential value of statistics, see Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005, and Zarb Adami v. Malta, no. 17209/02, §§ 77-78, ECHR 2006-I. See also the CEDAW Concluding Observations on Lithuania, 2008, which expressed concern at the high prevalence of violence against women - particularly domestic violence - and at the insufficient number of crisis centres.

[25] Another complaint was presented to the police on 9 March 2001. The majority declares, in paragraph 66, that it cannot take this complaint into account, but in the following paragraph it goes on to admit that the applicant made “credible assertions” that she had been exposed to threats to her physical integrity.

[26] To quote paragraph 280 of the Explanatory Report of the Council of Europe Convention on Preventing and Combating Violence against Women.

[27] The district court’s decision of 15 December 2005 was wrong. Although it was revoked by the regional court, the mistake caused an additional delay in the proceedings, which finally became time-barred.

[28] The majority refrained, in paragraph 83, from considering that the applicant’s criminal complaint should have been pursued by the public prosecutor. Yet, the majority accepted the Government’s argument that the new law on domestic violence of 15 December 2011, which converted domestic violence into a public prosecutable offence, serves to acknowledge the “public importance” of the crimes affected by the public prosecutor’s decision of 2005. In other words, the majority is ready to apply retroactively the new Law against domestic violence to the detriment of the defendant, but is not willing to draw the conclusion that it was the public prosecutor’s fault that the case was wrongfully closed.

[29] I take inspiration, once again, in Justice Blackmun, who raised his voice for “Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father” in his famously dissenting opinion joined to the heinous case of the State’s failure before domestic violence DeShaney v. Winnebago Cty. DSS, 489 U.S. 189 (1989).

[30] The ECHR has communicated another case concerning domestic violence - Praškevičienė v. Lithuania, No. 27920/08 - to the Government of the Republic of Lithuania; see Internet page of the Ministry of Justice - http://www.tm.lt/eztt/naujiena/154.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> VALIULIENE v. LITHUANIA - 33234/07 - HEJUD [2013] ECHR 240 (26 March 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/240.html Cite as: [2013] ECHR 240

European Court of Human Rights