By Corina Heri, postdoctoral researcher at the University of Amsterdam
‘When he kills you, come and see us’, police reportedly told the applicant in Volodina v. Russia before proceeding to ignore her allegations of domestic violence. On 9 July, the Third Section found that the respondent State had violated its positive obligations under Article 3 and, applying a gender-based approach, held that Russia has a large-scale structural problem when it comes to domestic violence. This post discusses the Chamber’s findings under Articles 3 and 14 ECHR, the question of whether this treatment constituted torture, and how to test compliance with the obligation to prevent ill-treatment.
Facts of the Case
The applicant in this case, Valeriya Volodina, alleged that she had suffered a pattern of domestic violence perpetrated by her former partner, Mr. S. Over the course of three years, S. allegedly assaulted, kidnapped, stalked, threatened, stole from, and intimidated the applicant. One particularly hard punch, to her stomach, led to the termination of her pregnancy. S. also allegedly published the applicant’s private photographs online and put a secret GPS tracker in her purse. The applicant’s police complaints never led to a conviction or any protective measures; in 2018, she legally changed her identity in order to impede S. from finding her.
International Materials, Soft Law, and Custom
The judgment sets the stage for what is to come by compiling numerous international materials, including the CEDAW Committee’s conclusion that the prohibition of gender-based violence is a principle of customary international law. It also cites various reports and statistics specific to Russia, including on the prevalence of domestic violence and the failure of the authorities to adequately respond. The Court moreover cited the report of the Special Rapporteur on Violence against Women following her 2004 mission to Russia, which details patriarchal norms and social values that consider husbands superior to wives, treat domestic violence as a private issue, blame women for provoking abuse, lead to impunity, and allow the authorities to reiterate the ‘ancient Russian proverb, “a beating man is a loving man!”’.
The Court first evaluated whether the applicant was subjected to treatment contravening Article 3 ECHR, finding that she had been exposed to inhuman treatment. It then turned to whether the authorities had discharged their positive obligations to protect the applicant under Article 3, breaking this down into three overlapping obligations:
- The obligation to establish a legal framework, i.e. to adopt positive measures in the sphere of criminal-law protection (which the respondent State had violated, given that domestic law does not specifically address or even define domestic violence, and the domestic authorities cannot prosecute in the public interest);
- The obligation to prevent the known risk of ill-treatment (in which regard “[t]he risk of a real and immediate threat must be assessed, taking due account of the particular context of domestic violence”, and which the Russian authorities had likewise failed given that they took no action in response to the applicant’s complaints, treated the situation as a private matter, and did not make available any possibility for protection measures, such as restraining orders); and
- The obligation to carry out an effective investigation into allegations of ill-treatment, with special diligence required in domestic violence cases (which had likewise been violated, given the failure to institute criminal proceedings despite the applicant’s numerous and substantiated police reports, the absence of any serious attempts to establish the circumstances, the failure to take an overall view of the violence, and the unavailability of public interest prosecution).
The Court went on to examine whether the authorities had breached the prohibition of discrimination in Article 14 ECHR. It held that substantive gender equality requires a gender-sensitive interpretation and application of the Convention, taking into account factual inequalities between women and men and their impact on women. Citing Opuz, the Court reiterated that violence against women, including domestic violence, is a form of discrimination against women. Once a large-scale structural bias has been shown to exist – for example through contextual evidence –, applicants needn’t also prove that they have suffered individual prejudice. Working with the information before it, the Court found that there was such a prima facie indication that domestic violence disproportionately affects Russian women. The domestic authorities had not taken policy measures aimed at substantive gender equality, had been reluctant to acknowledge how serious and widespread the problem is and its link to gender discrimination, and had tolerated “a climate which was conducive to domestic violence”. As a result, the Court found a violation of Article 14 ECHR.
The Separate Opinion of Judge Pinto de Albuquerque
In a separate opinion handily setting out the main pros and cons of the judgment, Judge Pinto de Albuquerque, joined by Judges Dedov and Serghides, congratulated the majority for:
- applying a gender-sensitive interpretation of the ECHR, shifting the burden of proof and recognizing factual inequalities as well as responding to victims’ vulnerabilities;
- affirming that the recognition of gender-based violence as a form of discrimination against women is a principle of customary international law; and
- giving proper weight to soft-law instruments, paying close attention to context and using statistics to identify underlying structural problems.
Judge Pinto de Albuquerque also identified some shortcomings in the judgment, namely that:
- it failed to acknowledge that domestic violence is torture. In this regard, he noted the tendency to downplay women’s suffering caused by gender-based violence.
- it applied the Osman test, which serves to evaluate the State’s compliance with the positive obligation to protect, and which (he argued) does not work in domestic violence cases. This test determines whether the authorities knew, or ought to have known, that there was a real and immediate risk to the life of an identified individual from criminal acts by a third party, and took reasonable measures. In domestic violence cases, instead of immediacy, it was argued, the Court should test awareness that a segment of the population (i.e. women) is subject to repeated violence.
- it missed an opportunity to impose general measures under Article 46.
This was the first domestic violence judgment against Russia, coming after recent changes to domestic law reduced or eliminated criminal sanctions for domestic violence, and it raises a number of points that merit further discussion.
First, the gender-sensitive approach taken in this judgment, building on past case-law, should emphatically be welcomed. The judgment takes a firm stand against patriarchal norms and social values. It firmly rejects arguments that this is a matter for the private sphere and that this type of violence has nothing to do with gender inequality.
Secondly, this case would indeed have lent itself to a general measures order under Article 46, rendering it a ‘quasi-pilot judgment’. Many of the measures required by the Convention here are obvious – i.e. to amend the domestic law so as to capture domestic violence and provide a possibility for protective orders. In addition to statistical data, a number of similar applications pending against Russia attest to the extent and severity of this problem. To mention just one example, police dismissed Margarita Gracheva’s complaints about her violent husband as a “manifestation of love” just weeks before he drove her to the forest and used an axe to chop off both of her hands.
Thirdly, the decision not to characterize this as a case of torture provides food for thought. Torture under the ECHR is distinguished from inhuman and degrading treatment by a matter of degree. Leaving aside the requirement of prohibited purpose, which can take a back seat in some torture cases and which does not seem to have particularly worried the judges here (but which could be met by perpetrators’ aim of debasing, humiliating, punishing, and coercing victims), I am left wondering: have there been any ECtHR cases in which ill-treatment inflicted by a private party has constituted torture? I’m not aware of any, unless we count cases like El-Masri (where a foreign government tortured extraterritorially). This invites two immediate questions.
First, why is this? The Court’s present definition of torture doesn’t per se exclude torture by private actors, unlike the text of the UNCAT (which has been subject to a long-term feminist critique of the definition, which has to some extent made a difference: the Committee Against Torture increasingly takes a gender-sensitive approach in its work, and it has acknowledged that State inaction represents “encouragement and/or de-facto permission” of domestic violence, so an argument potentially could be made for State “consent or acquiescence” as per Art. 1 UNCAT. In addition, the UNSRT considers that gender-based violence always fulfils the purpose and intent elements of torture).
Secondly, does it matter whether the applicant’s ordeal is described as torture or as inhuman treatment? It’s been argued elsewhere that a finding of inhuman treatment is not ‘lesser than’ a finding of torture, and that there are benefits to the Court’s reticence in using the ‘torture’ label. I am not convinced, because the Court has been clear that torture carries a ‘special stigma’, and that severity of suffering is a deciding factor. The UNSRT has argued that conceiving of gender-based violence as ill-treatment instead of torture is a form of downplaying; also, a hierarchy of harm differentiating different forms of domestic violence is problematic. Lacking space to explore this further, I will simply note that, as Judge Pinto de Albuquerque has argued, a finding of torture allows for a higher damages award. If all violations of Article 3 constitute equal attacks on human dignity, then how can this be justified? Especially given the level of State acquiescence here, perhaps pending cases such as Margarita Gracheva’s will lead the Court to rethink whether domestic violence can be torture, because it shows that the intentions, types of violence, and traumatic repercussions that can be involved in domestic violence are very much like those of torture.
Lastly, when it comes to the Osman test and the duty to prevent a risk of harm from manifesting, the Court held that “[t]he risk of a real and immediate threat must be assessed, taking due account of the particular context of domestic violence.” This iteration of the Osman test is largely about avoiding the recurrence of domestic violence, and it actually does that rather well. By contrast, the concurring Judges seem to argue that, given the situation in Russia, knowledge of a risk can be imputed to the authorities vis-à-vis all women.
Though this is not an explicit vulnerability argument, it piggybacks on and would significant expand past vulnerability case-law. To be clear, it’s not new for the Court to find that victims of domestic violence are vulnerable, either as concerns Article 3 (Opuz) or Article 14 (Halime Kilic v. Turkey). In addition, women in certain regions (i.e. south-east Turkey) have been considered vulnerable as a whole. At the same time, the Court does not consider all women vulnerable, and others have worried that doing so would reinforce stereotypes.
Admittedly, the minority’s approach could conceivably serve to push back against pervasive patriarchal norms and values and systematic marginalization, although this is something that the Court does as well by no longer considering domestic violence a gender-neutral issue, at least not when, like in this case, faced with clear evidence to the contrary. It could also, however, be taken as a strict or objective criminal liability standard. When it comes to the preventive obligation specifically – which is about concrete coercive action, for example applying restraining orders – it’s less clear how the minority’s approach would work. Given the unpredictability of human conduct, resource constraints, the risk of coercive overreach, and concerns about stereotyping and the need to protect women’s agency, and when taken together with its findings about the obligations to establish a legal framework and to investigate, the majority seems to have interpreted the preventive obligation here in a realistic but effective way that requires States to provide victims of domestic violence with protection from their abusers.