What are the elements necessary to support a finding of discrimination in domestic violence cases? In the recent case of Talpis v. Italy, two judges voted against an Article 14 violation. The dissenting opinions offer an opportunity to reflect on this and other broader questions that may be relevant for future cases. The questions flow from disagreement in the judgment over: whether the domestic authorities involved in the individual case were discriminatory towards the applicant as a woman and whether there were sufficient indications of failures to protect women in the Italian system.
The facts of the case, very briefly, involved several episodes of violence against the applicant and her children by her husband. Following the first two episodes, Ms. Talpis filed a complaint against him and requested protection measures. A judicial investigation was opened for ill-treatment of the family, serious bodily harm, and threats of violence. The police questioned the applicant for the first time seven months after her complaint. She mitigated her allegations, which apparently led the judge to close the file concerning ill-treatment of the family and threats of violence. The proceedings for bodily harm, however, remained open.
Meanwhile, the third episode of violence resulted in the death of the couple’s son and in injuries to the applicant’s body. The proceedings pending against the husband for bodily harm ended two years after this tragic episode. The outcome was a fine of 2,000 euros. The courts also sentenced the husband to life imprisonment for murdering his son and attempting to murder his wife, for carrying a prohibited weapon, and for ill-treating Ms. Talpis and her daughter. The Court found several violations against Italy: Article 2 violation for failing to protect the lives of the applicant and her son (by six votes to one); Article 3 violation for failing to protect the applicant against domestic violence by her husband (unanimously); and a violation of Article 14, read with Articles 2 and 3 (by five votes to two).
Failures of the Authorities Involved in the Individual Case under Article 14
The Court starts the Article 14 analysis of the case by noting that the applicant had suffered violence several times and that the Italian authorities had been aware of these incidents (§ 142). It then lists the failures of the authorities in dealing with her individual case: (1) they did not conduct any investigation during the seven months following the applicant’s complaint. Nor did they take any measures to protect her (§ 143); (2) the husband was convicted of serious bodily harm three years after the applicant had filed a complaint and only after he had killed his son and attempted to kill the applicant (§ 143); and (3) the police remained inactive for six months since the prosecutor’s request to take immediate action on the applicant’s request for protection measures (§ 144). The Court concludes:
145. Selon la Cour, la combinaison des éléments susmentionnés, montre que, en sous-estimant, par leur inertie, la gravité des violences litigieuses, les autorités italiennes les ont en substance cautionnées. La requérante a par conséquence été victime, en tant que femme, d’une discrimination contraire à l’article 14 de la Convention. (T.M. et C.M. c. République de Moldova, no 26608/11, § 62, 28 janvier 2014; Eremia, précité, § 98, et Mudric c. République de Moldova, no 74839/10, § 63, 16 juillet 2013) …
To judge Eicke, one of the dissenting judges, there was no evidence that the authorities involved in the individual case had acted “in a discriminatory manner or with discriminatory intent towards the particular applicant” (partly dissenting opinion §19 b). The other dissenter, judge Spano, noted that the “impugned failings were not rooted in the discriminatory intent of the authorities but rather in pure passivity” (partly dissenting opinion § 21). An important question flowing from this disagreement concerns the kind of elements necessary to show that the authorities involved in the individual case acted against the woman concerned in a discriminatory manner.
A quick look at the three Moldovan domestic violence cases referred to above may throw some light on this question. This line of case law makes it clear that a simple failure or delay in dealing with violence against the woman in question is not enough. The authorities’ actions should amount “to repeatedly condoning such violence” and reflect “a discriminatory attitude towards the … applicant as a woman” (Eremia § 89). In T.M. and C.M. and in Eremia, the Article 14 violations are based on: 1) repeated failures/delays on the part of the authorities in dealing with the applicants’ situation (Eremia §§ 86-88, T.M. and C.M. §§ 59-61); 2) the authorities’ negative or minimizing attitudes towards the applicants/the violence they complained of; and 3) international materials indicating that domestic violence did not receive “appropriate recognition among officials” in Moldova (Eremia § 37, T.M. and C.M. § 25). To the Court, the findings in these materials “support the impression that the authorities do not fully appreciate the seriousness and extent of the problem of domestic violence and its discriminatory effect on women in Moldova” (Eremia § 89, T.M. and C.M. § 62).
In Mudric, the Court similarly lists the series of failures/delays of the authorities to respond to the violence suffered by the applicant (§ 62) and relies on the same international materials used in the two other Moldovan cases (§ 30) to find an Article 14 violation. However, the Court does not identify the kind of negative and minimizing attitudes noted in these two cases. The reasoning in Mudric may thus suggest that these attitudes, though important to support a finding of discrimination, may not be a necessary condition in the Court’s case law. Moreover, the three Moldovan cases suggest that the reports came to give the Court’s reasoning added force (“support the impression”). One may wonder whether the Court would have reached the same conclusion without these reports.
Like in Mudric, in Talpis the Court mentions the repeated failures of the authorities involved in the individual case but does not identify attitudes of the kind found in T.M. and C.M. and Eremia. It may be that the inertia of the Italian authorities involved in the individual case was so manifest that the Court viewed in this inertia an underestimation of the seriousness of the violence in question. The police inaction for several months seems to have been particularly striking to the Court (§ 144). The Court also relies on several reports to then add:
145 … la requérante a apporté un commencement de preuve, étayé par des données statistiques non contestées qui démontrent d’une part que les violences domestiques touchent principalement les femmes et que, nonobstant les réformes entreprises, un nombre important de femmes meurent assassinées par leur compagnon ou par leur ancien compagnon (fémicides) et d’autre part que les attitudes socioculturelles de tolérance à l’égard des violences domestiques persistent …
These findings seem to have provoked further disagreement in the judgment, to which I now turn.
Systemic Gender Discrimination
The dissenters look at Talpis largely from the perspective of systemic failure to protect women (see judge Eicke § 12 and heading in judge Spano’s opinion “Systemic gender discrimination under Article 14 of the Convention”). One part of judge Spano’s opinion seems to capture the dissent concerns in this respect. Given the Court’s prior case law and its previous findings in Rumor v. Italy,  he could not agree that “the inaction of the authorities, as manifested in the present case, reflects systemic gender-based discrimination, since there is insufficient evidence to show general and discriminatory passivity of the kind previously established in the Court’s case-law” (§ 18). This disagreement raises another broader question. What kind of content should materials examining domestic violence in a certain country have in order to reveal an appearance of discrimination of women victims of domestic violence on the part of the domestic authorities?
The previous case law the dissenters refer to includes most notably Opuz v. Turkey. The materials in Opuz indicated that police officers had tried to convince women to drop their complaints and treated the problem as a “family matter” (Opuz § 195) and that courts had unreasonably delayed issuing injunctions and mitigated sentences on the grounds of custom and tradition (Opuz § 196). To the Opuz Court, the reports thus suggested that the authorities had tolerated domestic violence and that the available remedies had not worked effectively (Opuz § 197). The applicant in Opuz, the Court concluded, was able to give “a prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence” (Opuz § 198).
Going back to Talpis, what do the materials included in the judgment indicate about the way Italian authorities dealt with domestic violence? The findings of the CEDAW Committee quoted in the judgment reveal that the high number of femicides in Italy may lead one to think that the authorities had not done enough to protect women (Talpis § 57). The conclusions of the UN Rapporteur on Violence against Women quoted in the judgment note that the government’s achievements “have not led to a decrease in the femicide rate or translated into real improvements in the lives of many women and girls” (Talpis § 59). It is true that, as judge Spano says, the UN VAW Rapporteur observed that the Italian legal framework “largely provides for sufficient protection of violence against women” (§ 22, quoting paragraph 68 of the report). But it is also true that the UN VAW Rapporteur added in this report that the Italian legal framework was “characterized by fragmentation, inadequate punishment of perpetrators and lack of effective redress for women victims of violence. These factors contribute to the silencing and invisibility surrounding violence against women, its causes and consequences” (paragraph 68 available here).
To conclude – and these are my first impressions – the dissenters seem to be asking for more specific discriminatory attitudes on the part of domestic authorities (especially attitudes of the type found in Opuz). The Talpis majority, on the other hand, might have preferred not to limit a finding of discrimination to the type of circumstances present in Opuz and kept the door open to situations that, though not the same, may also be discriminatory.
 The social workers remarked in Eremia that she was “neither the first nor the last woman to be beaten up by her husband” (§ 25) and the police pressured her to withdraw her complaint (§ 17). The Court criticized these attitudes in § 87. The prosecutor in T.M. and C.M. refused to open a criminal investigation because it considered that the bodily injuries inflicted on the applicant were not serious enough (§ 12). The Court criticized this attitude in § 59.
 I do not have the space to discuss but I want to at least mention an important aspect of the dissenting opinions: they considered that the majority in Talpis had failed to properly consider the Court’s findings in a previous domestic violence case against Italy, Rumor v. Italy, where no violation of Article 3 alone and in conjunction with Article 14 was found.