February 26, 2014
T.M. and C.M. v. Moldova is one of the latest instances of domestic authorities’ passivity in protecting women against domestic violence. At the root of this passivity was a failure to understand the seriousness and extent of the problem and its discriminatory effect on women. This was reflected in misconceptions about both the nature of domestic violence and the reality of many of its victims. In dealing with this failure, the Court issues a strong judgment: (i) it reinvigorates the definition of domestic violence by renewing attention to non-physical forms, notably economic abuse and (ii) it refines the links between domestic violence victims’ vulnerability and the content of State positive obligations.
The applicants are a woman (first applicant) and her daughter (second applicant). After complaining several times to the police of verbal abuse and physical assault from the ex-husband, several medical reports were produced. The reports showed that both applicants had been ill-treated. The first applicant applied for a protection order but the authorities first took a long time to consider her application and then failed to send the order for enforcement. As a result of these and other failures, the abuser was not removed from the house and the applicants were forced to move into a refuge. The prosecutor rejected the first applicant’s request to open a criminal investigation against the ex-husband. The argument was that the injuries were not serious enough to amount to domestic violence.
The Court found a violation of Article 3 ECHR. It concluded that domestic authorities failed to take effective measures against the abuser despite their knowledge of the risk of further violence. The Court also found a violation of Article 14 ECHR, together with Article 3 ECHR: the combination of a series of factors (e.g., failure to send protection order for enforcement, failure to start a criminal investigation, and failure to consider protective measures before a formal application was made) amounted to condoning violence and reflected a discriminatory attitude towards the first applicant as a woman.
1. Failure to Attend to the Vulnerability of Domestic Violence Victims
The Court, as readers might know, has increasingly acknowledged the vulnerability of domestic violence victims. This recognition has ranged from a more individualized and contextualized assessment of the vulnerability of particular victims (e.g., Opuz v. Turkey, para. 160 and Eremia v. Moldova, para. 61) to more categorical declarations that domestic violence victims are particularly vulnerable as such (e.g., Bevacqua and S. v. Bulgaria, para. 65; Hajduová v. Slovakia, paras. 41 and 46; Eremia v. Moldova, para. 73). In the three latter cases, the Court notes in its general principles the need for States to get actively involved in their protection. In Hajduová, the Court gets more specific: “owing to the particular vulnerability of victims of domestic violence … the domestic authorities should have exercised an even greater degree of vigilance in the present case” (para. 50).
T.M. and C.M. is certainly part of these developments. The Court notes once again the particular vulnerability of victims of domestic violence but then goes deeper into the links between this vulnerability and the content of State positive obligations.
In the Article 3 ECHR analysis, after noting that the police knew of the allegations of abuse, the Court says:
46. … it was the duty of the police to investigate of their own motion the need for action in order to prevent domestic violence, considering how vulnerable victims of domestic abuse usually are.
And in the Article 14 ECHR reasoning, the Court holds:
60. … Considering the particular vulnerability of victims of domestic violence, who often fail to report incidents, it was for the authorities to verify whether the situation warranted a more robust reaction of the State and to at least inform the first applicant of the existing protective measures.
The Court makes these remarks after noting domestic authorities’ failure (i) to consider protective measures before a formal application was made or (ii) to start a criminal investigation before an official complaint was made.
The message, in any case, is clear: domestic authorities should have taken measures of their own motion, regardless of the victims’ formal requests. This approach is spot on for several reasons. For example, it acknowledges the reality of many victims of domestic violence who may not make formal complaints out of fear of further violence or because they are threatened into not reporting (in Moldova, for instance, one of the reasons why some women do not report domestic violence is because of fear and shame [T.M. and C.M., para. 26]). Moreover, the reality in Moldova is that many victims are not even aware of the law against domestic violence (T.M. and C.M., para. 26). Thus, in asking domestic authorities to be more proactive, the Court counteracts, at least to some extent, some broader constraints in reporting domestic violence.
Like in previous cases, however, the Court does not really spell out why it views domestic violence victims particularly vulnerable. The Court would probably do well in unpacking these reasons in future case law. This is important because, as the UN Special Rapporteur on Violence against Women has noted, one of the common misconceptions about violence against women is that victims are “inherently vulnerable women needing special protection” (see Eremia, para. 37). In characterizing victims of domestic violence as particularly vulnerable, the Court should therefore be careful not to give the impression that it is associating vulnerability exclusively with something inherent in the victims. An approach of this sort would risk hiding from view more structural factors or the root causes of violence.
2. Failure to Understand the Nature of Domestic Violence
At the root of domestic authorities’ failure to start a criminal investigation against the ex-husband, was a major misconception about the nature of domestic violence. The prosecutor rejected the first applicant’s request to open an investigation with the following argument: “the medical evidence had confirmed that the injuries caused to the applicants were not considered damaging to their health, meaning that the offence of domestic violence, which required at least slight bodily harm or damage to health, had not been committed” (T.M. and C.M., para. 12).
The Court reminds Moldova that this is misconceived in the following terms:
47. The prosecutor’s position that no criminal investigation could be initiated unless the injuries caused to the victim were of a certain degree of severity … also raises questions regarding the efficiency of the protective measures, given the many types of domestic violence, not all of which result in physical injury, such as psychological or economic abuse.
The Court has already noted that domestic violence can take various forms, including psychological violence or verbal abuse (e.g., Opuz, para. 132). However, as far as I am aware, “economic abuse” appears to be a novel element in the Court’s conceptualization of domestic violence. The Court’s inclusion of economic abuse can only be welcomed, as this aspect apparently tends to be largely overlooked in domestic violence cases – although it has been around for quite a while in international documents. One definition states: “Economic abuse includes acts such as the denial of funds, refusal to contribute financially, denial of food and basic needs, and controlling access to health care, employment, etc.”
The fact that the Court repeats that domestic violence is not just about physical abuse but also about other forms of violence – including economic abuse – is surely one of the highlights of the reasoning. As the T.M. and C.M. case shows, the prosecutor’s view of domestic violence was not an isolated example. It was a reflection of a broader misconception in Moldova, where domestic violence is not perceived as a problem warranting legal intervention unless it results in serious injury (findings of the UN Special Rapporteur on Violence against Women in 2008 Visit to Moldova, para. 37, Eremia, which the Court includes in T.M. and C.M., paras. 25 and 62).
T.M. and C.M. takes a strong stand against domestic violence. It continues the line that the Court has set out in Opuz but makes some notable refinements in its interpretation of domestic violence. It makes clearer links between the vulnerability of domestic violence victims and State positive obligations. Perhaps most notably, it includes economic abuse on the list of non-physical forms of violence. Let’s now see if this recognition makes headway in the Court’s domestic violence case law.
 See Alexandra’s recent work on vulnerability in the Strasbourg case law here. She calls this kind of vulnerability “ex-post”: the person is considered particularly vulnerable after and because of this kind of abuse (p. 155).
 On the continuation of criminal prosecution in cases of withdrawal of victims’ complaints, see Opuz v. Turkey. In this case, the Court held that the legislative framework should have enabled the prosecuting authorities to pursue criminal investigations despite the withdrawal of complaints by the applicant on the basis that the violence was sufficiently serious (see especially para. 145 of the Article 2 analysis and para. 168 of the Article 3 reasoning).
 The Court repeats in the Article 14 ECHR analysis: 59. “… a prosecutor refused to start a criminal investigation because it did not regard the injuries on the first applicant’s body as severe enough … which underlines the failure to realise, or to explain to the law-enforcement authorities, the specific nature of domestic violence, which does not always result in physical injury.”
 See Pollet, Susan L., “Economic Abuse: The Unseen Side of Domestic Violence,” 83 New York State Bar Journal (2011) 40-43.
 See, e.g., Former Special Rapporteur on Violence against Women: “Violence is also increasingly defined to include psychological abuse and the withholding of economic necessities from the victim” (UN Doc. E/CN.4/2003/75, 6 January 2003, para. 30); UN General Assembly, Resolution 58/147, 22 December 2003: “domestic violence can include economic deprivation …”; and text of the Council of Europe Convention on preventing and combating violence against women and domestic violence open for signature on 11 May 2011: “‘domestic violence’ shall mean all acts of physical, sexual, psychological or economic violence” (Article 3(b)).
 UNICEF Innocenti Research Centre, Domestic Violence against Women and Girls, Digest No. 6 at 2, available at http://www.unicef-irc.org/publications/pdf/digest6e.pdf