August 26, 2022
Stella Christoforidou
Landi v. Italy is the most recent in a group of cases on domestic violence which have appeared before the European Court of Human Rights (the Court/the ECtHR) in recent years.[1] Taken together with Y and Others v. Bulgaria, it establishes a new direction in ECtHR case-law regarding the burden of proof which must be reached by applicants seeking to prove discriminatory treatment in breach of Article 14 of the European Convention of Human Rights (the Convention/ECHR). In both of these cases, the Court rejected the applicants’ allegation that there had been a violation of Article 2 in conjunction with Article 14 because the applicants did not provide sufficient evidence of discrimination, namely, statistics or observations from non-governmental organizations, showing widespread inertia in the justice system and impeding the provision of effective protection to female victims of domestic violence.
Landi v. Italy concerns the failure of the Italian State to take the required action to protect the applicant and her two children from the domestic violence inflicted by her partner, which had led to the murder of her one-year-old son and her own attempted murder in 2018.
The first assault which the Carabinieri (Italian military police) were informed of occurred on the 20th of November 2015. For approximately four months, no investigation was carried out and no precautionary measures were ordered by the judge, as the public prosecutor did not ask the judge to take such a measure. Finally, on the 3rd of March 2016 the applicant decided to withdraw her complaint.
In 2017, two violent incidents occurred, the first at the applicant’s home and the second in a public space. On the 22nd of February 2018, following a third violent incident, the applicant took the perpetrator (N.P.) to a mental health center. When the Carabinieri arrived at the mental health center, the applicant testified that N.P. had come into the house very agitated, accusing her of having parked the car incorrectly and then headbutted her. The next day the applicant visited the police station, filed a complaint, and attached evidence of the violence she had suffered. On the same day, the Carabinieri were informed by doctors that, during the interviews carried out with N.P. and his family, several episodes of ill-treatment and domestic violence had been recounted. On the 28th of February 2018, the applicant withdrew her complaint. Despite this however, the Carabinieri of Scarperia sent the complaint to the Public Prosecutor of Florence, together with a communication of the criminal offenses, asking them to assess the need to apply for a custodial measure against N.P. in order to protect the applicant and her children.
Proceedings were brought against N.P. for the offense of ill-treatment in the family (Article 572 of the Italian Criminal Code), but during the investigation, no measures to protect the applicant and her children were ordered.
In April 2018, N.P. returned to live at the applicant’s home. According to the applicant this was because Dr. S.D. who was attending N.P., recommended that the couple be reunited to facilitate N.P.’s therapy. The psychiatric report that followed concluded that N.P. constituted a social risk linked to his pathology and that he would need to be in a constant therapeutic program.
On the 14th of September 2018, before dinner, N.P. was disturbed by the noise caused by his son and by a telephone call received by the applicant. He got angry and grabbed her cell phone and went to get a knife. At that time the applicant took her two children and escaped onto the balcony. N.P. approached the balcony and killed his one-year-old son and attempted to kill the applicant by stabbing her with a knife several times.
In its judgment, the Court held that there had been a violation of Article 2 of the Convention. The Italian authorities had not shown due diligence in dealing with the applicant’s complaints and they had thus failed in their positive obligation to protect the lives of the applicant and her children. Particularly, the Court noted that, with the exception of the reports of the police to the public prosecutor, the national authorities as a whole had failed in their duty to carry out an independent and proactive procedure and a comprehensive assessment of the risk that the perpetrator would commit further violent acts against the applicant and her children and because they did not adopt operational and preventive measures to mitigate the risk and to protect those concerned.
As for the alleged violation of Article 14, the Court found that since its 2017 ruling in Talpis v. Italy, Italy had taken action to implement the Istanbul Convention, thus demonstrating a genuine political will to prevent and combat violence against women. On the other hand, the applicant had failed to gather any prima facie evidence of widespread inertia in the justice system, impeding the provision of effective protection to female victims of domestic violence, or of the discriminatory nature of the measures or practices implemented by the authorities in her case. Besides, she had not provided any statistics or observations from non-governmental organization, showing systemic discrimination. Moreover, the applicant did not allege that the police officers had attempted to deter her from prosecuting N.P. or from testifying against him, or that they had tried in any way to impede her complaints. On the contrary, they had submitted several reports to the public prosecutors about the applicant’s situation, even after she had withdrawn her final complaint, and they had requested the implementation of protective measures. On this basis, the Court found no violation of Article 14 in conjunction with Article 2.
Landi v. Italy can be seen as something of a volte-face in the case law on domestic violence at the ECtHR. Thirteen years earlier, in Opuz v. Turkey, the Court had limited the principle of affirmanti incumbit probation in domestic violence cases and accepted that in such cases it is possible to reverse the burden of proof, where the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities. In the same case, the Court also accepted that statistics could not in themselves disclose a practice which could be classified as discriminatory. In Landi v. Italy as well as in Y and Others v. Bulgaria, it is clear that the close connection between the ECHR, the CEDAW (as established in Opuz v. Turkey) and the Istanbul Convention (as established in Talpis v. Italy) in domestic violence cases has been overturned.
Y and Others v. Bulgaria, involved a woman who was fatally shot by her husband. She had complained to the authorities several times about threats he had made to her. She had also filed written complaints to the police and the prosecutor, even just a couple of hours, before she was killed. In its ruling the Court found a violation of Article 2 but not of Article 14 in conjunction with Article 2 for the same reasons as in Landi v. Italy – namely because the applicant had failed to prove the existence of systemic discrimination through statistical evidence, as it will be analyzed below.
In Landi v. Italy, the Court emphasized that the Carabinieri had addressed the public prosecutor multiple times. However, the public prosecutor never took any action to prevent future incidents, nor conducted any investigation into the allegations made. The police reports to the public prosecutor convinced the Court that no discriminatory perceptions governed the actions of the authorities, while, regarding the prosecutor’s passivity, the lack of statistical evidence that could prove the systemic failure to offer effective protection to victims of domestic violence was assessed in a way that lead the Court to conclude that there was no violation of Article 14.
With regard to statistical evidence, in Y and Others v. Bulgaria, the Court accepted that the fact that the authorities did not collect and keep comprehensive statistics about the way the law-enforcement authorities handle domestic-violence cases was a serious omission. Despite this however, the manner in which the Court dealt with the case meant that the consequence of this omission by the domestic authorities (namely the absence of official statistics), caused the burden of proof to shift to the applicant who was then required to seek other kinds of prima facie evidence of discrimination such as reports from NGOs, international observers such as CEDAW or statistical data from academic institutions. In addition, all these kinds of evidence and especially the non-official statistical data must be accurate, complete and must establish the point of the claim. So, the Court concluded that the evidence brought before it by the applicant did not especially state that the police or other authorities were consistently downplaying or unwilling to deal with domestic violence cases and nor did they cite concrete field data on the point. Moreover, the non-official statistical data that was presented was not clear and did not cover the whole country (para 126-128).
Taking the above argument into consideration, it can be understood that in these two cases the reversal of the burden of proof, established in Opuz v. Turkey, has been undone. As a consequence, applicants in such cases will be faced with an obligation that far exceeds their ability to gather sufficient evidence to support the claim of discrimination. Irrespective of the fact that the collection of statistical data is an international obligation for the states under Istanbul Convention, their failure to do so will entail no consequences for them when they appear before the ECtHR. On the contrary, it seems that this practice has some kind of ‘favorable’ outcome for the state, since ends up burdening the applicant to seek and gather sufficient evidence to support their claim. Τhis so to speak ‘reversal of the reversal’ of the burden of proof because of the omission of the state to comply with its obligation under the Istanbul Convention to collect and keep statistical data on domestic violence raises serious concerns about how the states may use it to avoid judicial control regarding systemic discrimination in domestic violence cases.
While the Court separates the obligations under other international conventions and under the ECHR, arguably, the keeping of statistical records for domestic violence cases is also a prerequisite for the implementation of Article 14 and the evaluation of systemic discrimination given that this is information that lies solely within the knowledge of the authorities. In light of this, a state failure to gather and keep proper statistical data is a matter that must be addressed by the Court and that should be addressed in a way that facilitates the applicant’s access to judicial protection as a victim of systemic discrimination. In both Landi v. Italy and Y and Others v. Bulgaria, statistical evidence played a key role and yet of these two statesonly Italy has ratified the Istanbul Convention. If the approach adopted by the Court in these two cases is going to be continued, then a legal basis for the state’s obligation to keeping statistical records of domestic violence must be sought within the ECHR itself.
In Landi v. Italy a new issue for consideration appears regarding systemic discrimination and, in particular, the conceptualization of the term ‘systemic discrimination.’ According to the definition given by the Council of Europe, systemic discrimination ‘involves the procedures, routines and organizational culture of any organization […].’ This comprehensive definition includes every kind of procedure. So, it can be considered to also refer to procedures must be placed to ensure that victims of domestic violence (who are predominantly women – as the Court accepted in Y and Others v. Bulgaria (para. 124)) receive adequate protection.
As previously states, according to this new caselaw, in order for the victims of domestic violence to be able to claim a violation of Article 14 in conjunction with Article 2, sufficient evidence must be brought before the Court. In principle, statistical data can provide prima facie evidence for a large-scale structural bias, relieving the applicant of the obligation to demonstrating that they were a target of individual prejudice (Y and Others v. Bulgaria, para 122). Otherwise, there is an obligation on the applicant to bring sufficient evidence to prove that they were the victims of discrimination in the specific case. In such cases, what matters is the specific circumstances rather than the biased systemic practices. Consequently, the applicant has no obligation to bring statistical records or other kinds of prima facie evidence of systemic discrimination before the Court.
Although this may seem to relieve some of the burden from the applicant, the judicial reasoning employed in Landi v. Italy, added another impediment for those seeking to prove a violation of Article 14 in the specific circumstances, by de facto dividing the procedure must be placed to ensure that victims of domestic violence receive adequate protection into two stages: in front of the police and in front of the public prosecutor. Even though the Court recognized, in principle, the possibility that a victim of domestic violence could suffer from discriminatory treatment before the authorities in a specific case (see Landi v. Italy, para 104, and Y and Others v. Bulgaria, para 122g; see also the relevant principles first articulated by the Court in Opuz v. Turkey, 184-191), they concluded that this was not the case of the applicant because the police had delivered several reports to the public prosecutor. So, the police did take care and did not try to discourage her from filing a complaint.
At this point, the Court drew a line between the police and the authorities ‘as a whole’ (see the presentation of the judgment above) namely, the police and the public prosecutor. In the eyes of the Court, the passivity of the public prosecutor, despite the pressure exercised to him by the police, could be discriminatory only if it was ‘systemic,’ and could be systemic only if there was statistical evidence to show this which was brought to the Court by the applicant. So, it appears that the passivity of the public prosecutor can never assessed in light of the specific circumstances of a case, which is, in consequence, a restriction of the scope of the Article 14, in conjunction with the Article 2 in cases of domestic violence.
By adopting this approach, the Court places and excessive burdens on the applicant to demonstrate by statistics that they are a victim of discrimination in front of ‘some’ authorities, without adequate justification for this distinction between the several forms of authorities who were involved in the case. This is even more problematic, when we consider that the protection of victims of domestic violence consists of a single process, which requires the cooperation of different authorities (namely the police and the public prosecutor). So, it is doubtful if it is crucial that the discouragement came either from the police or from the prosecutor’s passivity. Furthermore, the definition of systemic discrimination given by the Council of Europe, gives no grounds for such a separation between different state authorities responsible for the same purpose – in this case, the efficient protection of the victims of domestic violence. This leads to the conclusion that the discriminatory treatment that someone suffers under specific circumstances must be assessed, in principle, in a holistic way, without distinction between several authorities.
The rulings in Landi v. Italy and Y and Others v. Bulgaria, mark a U-turn in the Court’s approach in domestic violence cases when compared with Opuz v. Turkey, the cornerstone of the Court’s domestic violence caselaw up until now. Despite the fact that victims of domestic violence should be considered by definition as a vulnerable group, especially in light of the Istanbul Convention, in these two cases the Court placed a disproportionate burden on the applicants, vis-à-vis their status, by obliging them to provide statistical evidence to prove that authorities treated them in a way that violated Article 14 in conjunction with Article 2.
With regard to statistical data as a source of evidence, it must be highlighted that, not only in domestic violence cases but in every case with a severe social impact, the burden of proof of statistical evidence provided by the applicant, creates a severe impediment for a victim to seek judicial protection. Besides, statistics do not provide the only perspective on the world and, if there is a risk of them becoming the only way to assess the existence of discrimination judicially, specific obligations for the states must follow, especially on the grounds of accuracy and impartiality.
Domestic violence cases need for special treatment even before the Court, because victims are in principle victims of crime and of discrimination at the same time. Therefore, regarding their vulnerable position, the burden of proof to demonstrate by statistical data that are victims of discrimination cannot be justified.
[1] Opuz v. Turkey, Rumor v. Italy, Talpis v. Italy, Volodina v. Russia.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
