Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
Ms Volodina was subjected to violence over three years by her former partner, S, after the end of their relationship. He assaulted, kidnapped, stalked, threatened, stole from, and intimidated her. He threatened to kill her and her son. When she was pregnant, he assaulted her so severely that the pregnancy was compromised and on medical advice, she had an abortion. He also published her private photographs, without her consent. Her complaints to the police were treated in a desultory manner. For example, even though he had sent texts to Ms Volodina expressing his intention to cause her death through tampering with the brakes, S’s tampering with her car brakes was treated as a minor criminal damage matter. The police told Ms Volodina that the physical assaults were too minor to constitute an offence that the authorities were required to investigate – Ms Volodina was advised by police that the ‘minor battery’ that she had been subjected to would have to be prosecuted by her, as a private prosecution, for which she would have to gather the evidence and make the case. His threats were considered by the police to be not sufficiently serious to constitute an offence. S was not convicted of any of the crimes she reported, and no protective measures were used, even though Ms Volodina sought protection from the state. Eventually Ms Volodina legally changed her identity in order to stop S. from finding her.
What was the decision?
Reinforcing the understanding of violence against women as a breach of Article 3 of the European Convention on Human Rights
The European Court of Human Rights found that the harms caused by S to Ms Volodina – “the fear, anxiety and powerlessness that the applicant must have experienced in connection with his controlling and coercive behaviour” were sufficiently serious to constitute a violation of Article 3, the right not to be subjected to torture or ill-treatment. However, the majority decision was that Ms Volodina had experienced inhuman treatment, rather than torture.
“Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. An assessment of whether this minimum has been attained depends on many factors, including the nature and context of the treatment, its duration, and its physical and mental effects, but also the sex of the victim and the relationship between the victim and the author of the treatment. Even in the absence of actual bodily harm or intense physical or mental suffering, treatment which humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or which arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, may be characterised as degrading and also fall within the prohibition set forth in Article 3.” (paragraph 73)
The ECHR made specific comments on the particular aspect of ill-treatment caused by the publication of her private photographs, which “further undermined her dignity, conveying a message of humiliation and disrespect.” (paragraph 75)
Three aspects of the State’s failure to ensure respect for Article 3 by non-State actors
The ECHR found that Russia had failed to abide by their obligations to address ill-treatment committed by non-state actors, the “positive obligations” which are “interlinked” (paragraph 77)
(a) the obligation to establish and apply in practice an adequate legal framework affording protection against ill-treatment by private individuals;
(b) the obligation to take the reasonable measures that might have been expected in order to avert a real and immediate risk of ill-treatment of which the authorities knew or ought to have known, and
(c) the obligation to conduct an effective investigation when an arguable claim of ill-treatment has been raised.
Law on domestic violence must criminalise all forms of violence, no form is “too minor”
The ECHR made important comments on the need to criminalise all forms of violence in the family, including psychological and economic abuse – noting that (paragraph 81) “requiring injuries to be of a certain degree of severity as a condition precedent for initiating a criminal investigation undermines the efficiency of the protective measures in question, because domestic violence may take many forms, some of which do not result in physical injury – such as psychological or economic abuse or controlling or coercive behaviour.”
One incident of violence is too many – and the responsibility to act increases as violence continues, until the State discharges its duty to put an end to violence.
The ECHR reiterated several principles from previous jurisprudence:
- that even one incident of domestic violence counts as criminal behaviour which the state should investigate.(paragraph 81).
- that it is in the public interest to prosecute crimes of violence against women, and that “… the more serious the offence or the greater the risk of further offences, the more likely that the prosecution should continue in the public interest, even if victims withdraw their complaints.” (paragraph 83)
- that even when the authorities did not remain totally passive, they still failed to discharge their obligations under Article 3 of the Convention because the measures they had taken had not stopped the abuser from perpetrating further violence against the victim.” (paragraph 86)
This is an important point to emphasise – the state’s duty is not discharged until there is sustainable safety and well-being for the woman who has been subjected to domestic violence.
The ECHR also made some comments on the qualities that investigations should have:
“To be effective, such an investigation must be prompt and thorough. The authorities must take all reasonable steps to secure evidence concerning the incident, including forensic evidence. Special diligence is required in dealing with domestic-violence cases, and the specific nature of the domestic violence must be taken into account in the course of the domestic proceedings. The State’s obligation to investigate will not be satisfied if the protection afforded by domestic law exists only in theory; above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays.” (paragraph 92)
The ECHR found a violation of Article 3, and a violation of Article 14 read with Article 3, and awarded compensation of 20,000 to Ms Volodina.
Learning from other institutions
Regarding discrimination, the ECHR confirmed its “settled case-law, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification. The Court has also accepted that a general policy that has disproportionately prejudicial effects on a particular group may be considered to constitute discrimination, even where it is not specifically aimed at that group and there is no discriminatory intent. Discrimination that is contrary to the Convention may also result from a de facto situation. (paragraph 109)
The ECHR went on to reaffirm its recognition of the analysis of other institutions addressing women’s human rights, and violence against women as form of discrimination:
“Having regard to the terms of specialised legal instruments – primarily the CEDAW Convention, and the work of the CEDAW Committee – the Court has recognised that violence against women, including domestic violence, is a form of discrimination against women. The State’s failure to protect women against domestic violence breaches their right to equal protection of the law, irrespective of whether such failure is intentional or not.” (paragraph 110)
In deciding that women in Russia were disproportionately affected by domestic violence, and that Russia had not done enough to address that discrimination, the ECHR recognized the expertise of the UN Special Rapporteur on violence against women, its causes and consequences, the UN Committee against Torture, and the Committee on Economic, Social and Cultural Rights and the findings they had made about the State’s failures to address violence against women. (paragraphs 117-133)
This was the first case against Russia in the European Court of Human Rights on domestic violence: however in coming to its decision, the ECHR drew on the findings of the CEDAW Committee in the O.G. v Russia case, as well as the report of the Special Rapporteur on violence against women from her visit to Russia in 2004.
The ECHR recognized that violence against women is a breach of customary international law, affirming explicitly the same finding made by the CEDAW Committee in General Recommendation 35.
In a separate opinion, Judge Pinto de Albuquerque welcomed the decision of his colleagues, but said that his view was that it should have gone further – the pain and suffering experienced by Ms Volodina was so serious, that the ECHR should have recognized it as torture, rather than ill-treatment:
“Taking into account all of the circumstances of the case, which display an accumulation of aggravating factors of harmful masculinity leading to the grave infringement of the applicant’s dignity and physical and psychological integrity, as well as the purposive conduct of the perpetrator, I wonder what more is needed to reach a finding of torture under Article 3. Once torture is identified, it need not be compared to even worse instances of torture, which undeniably exist. In the case at hand, the elements of torture were clearly fulfilled. Any understatement of suffering is contrary to the intention of the Court to condemn all forms of domestic violence and to demand a proactive State which complies with its positive obligation to act in a manner which counteracts persisting gender inequalities.” (paragraph 10)