The Evolving Jurisprudence of the European Court of Human Rights on Domestic Abuse: A.E. v Bulgaria

by Dr. Ronagh McQuigg

The European Court of Human Rights (ECtHR) has now built up a substantial body of jurisprudence on domestic abuse. It is now firmly established that failure on the part of State authorities to respond in a sufficient manner to this issue may constitute violations of Articles 2, 3, 8 and 14 of the European Convention on Human Rights (ECHR). However, the approaches taken by the ECtHR in domestic abuse cases have evolved. This is demonstrated by the three domestic abuse cases where the Court found Bulgaria to be in violation of the ECHR. The most recent of these is A.E. v Bulgaria which was decided in May 2023. The purpose of this post is to track the evolution of this jurisprudence, from a point where the ECtHR tended to base its findings on Article 8 (the right to respect for private and family life) to the current position whereby the Court’s use of Article 3 (the right to be free from torture or inhuman or degrading treatment) and Article 14 (the non-discrimination provision) is commonplace, as demonstrated in A.E. v Bulgaria.

Facts

In A.E. v Bulgaria, the applicant, at the age of 15, had moved in with a 23-year-old man, referred to in the judgment as ‘D.M.’. The applicant alleged that D.M. had been violent towards her on a regular basis. After one such attack she went to hospital, and was recorded as having injuries including extensive bruising which had been caused by blows from hard objects. The applicant’s mother contacted social services, who in turn contacted the prosecutor’s office. The prosecutor ordered that the police carry out a preliminary check into the complaints. The police interviewed the applicant and her mother, and the latter alleged that the applicant had been kicked and strangled by D.M. The prosecutor decided against opening criminal proceedings, and found that only an offence subject to private prosecution, namely minor bodily harm, had been committed. The applicant attempted to have this decision overturned, but without success.

The applicant argued, on the basis of Articles 3 and 14 of the ECHR, that the State had failed to protect her from domestic abuse and to investigate sufficiently her complaints in this regard, and that she had been discriminated against on the grounds of age and gender.

Judgment

In relation to the alleged violation of Article 3, the ECtHR found that the treatment which the applicant had suffered reached the threshold of severity needed to engage this provision. The Court noted that the applicant had been 15 years of age at the time of the circumstances in question, arguably in a state of emotional and physical vulnerability and dependent on her alleged aggressor, and was likely to have experienced serious intimidation and distress in addition to the injuries which had been recorded at the hospital. The ECtHR held that the State had failed to put in place an effective system to punish all forms of domestic abuse and to provide adequate safeguards for victims. The State had not protected the applicant sufficiently, and there had thus been a breach of Article 3.

In relation to the alleged violation of Article 14, the applicant had submitted statistics which established that women were the predominant victims of violence, including domestic abuse, in Bulgaria. The ECtHR asserted (at para. 119) that,

The Court proceeded to state (at para. 119) that, ‘once it has been established that domestic violence affects women disproportionately, it is for the Government to show what kind of remedial measures the domestic authorities have deployed to tackle that disadvantage and to ensure that women can fully enjoy human rights and freedoms on an equal footing with men.’

Apart from general submissions, the State had not demonstrated what specific policies had been pursued with the aim of protecting victims of domestic abuse and punishing offenders. In the view of the ECtHR, the relevant legal provisions were not capable of responding sufficiently to domestic abuse of which the majority of victims in Bulgaria were women. The Court found that the authorities had not disproved the applicant’s prima facie case of a general institutional passivity in matters related to domestic abuse, and stated (at para. 122) that, ‘for a sustained period of time women have continued to suffer disproportionately from domestic violence and the authorities have not shown that they have engaged adequately with the problem.’  The ECtHR therefore held that there had also been a violation of Article 14 taken in conjunction with Article 3.     

Analysis

A.E. v Bulgaria is a robust judgment which demonstrates a strong level of understanding of domestic abuse on the part of the ECtHR. The Court noted that, under the national legal framework, in order for harm to be considered as being inflicted in the context of domestic abuse, it had to be established that there had been ‘repeated’ acts of violence, a term which had been interpreted by the domestic courts as meaning no fewer than three instances. However, the ECtHR cited the June 2021 judgment of the Grand Chamber in Kurt v Austria, where the Grand Chamber had stated (at para. 175) that ‘consecutive cycles of domestic violence, often with an increase in frequency, intensity and danger over time, are frequently observed patterns’. The ECtHR in A.E. was of the view that ‘requiring repeated instances of abuse in order for the State to intervene, bearing in mind the real risk of new incidents of violence with increased intensity, [did] not sit well with the State’s duty to respond immediately to allegations of domestic abuse and to show special diligence in that context’ (para. 96), as had also been established in Kurt.

A.E. v Bulgaria constitutes the third domestic abuse case where the ECtHR found Bulgaria to be in violation of the ECHR, the previous two cases being Bevacqua and S. v Bulgaria and Y and Others v Bulgaria.  A study of these cases serves to demonstrate the ways the jurisprudence of the ECtHR on domestic abuse has evolved. In Bevacqua and S. v Bulgaria, which was decided in June 2008, it was argued that the State authorities had failed to protect the first applicant from the violent behaviour of her former husband. Although the applicants relied on Articles 3, 8 and 14 in this regard, the ECtHR decided that the complaints fell to be examined under Article 8, and therefore did not consider either Article 3 or Article 14 in its judgment. In its early jurisprudence on domestic abuse, the approach taken by the Court regarding whether it found breaches of Article 3 or violations of Article 8 was rather incoherent.  In certain cases such as Opuz v Turkey and E.S. and Others v Slovakia, the ECtHR found violations of Article 3. However in other cases such as Bevacqua and S. v Bulgaria, Kalucza v Hungary and A v Croatia, the Court found breaches of Article 8 and then stated that it was thus unnecessary to examine the cases under Article 3.

One possible explanation of the greater use of Article 8, as opposed to Article 3, in the ECtHR’s earlier case law on domestic abuse is that the Court may not yet have fully realised the gravity of the issue. However, this explanation does not appear sufficient, given that the ECtHR did find breaches of Article 3 in some relatively early cases involving domestic abuse. A more likely explanation lies in the fact that, for reasons of practicality, the Court often takes the approach of finding a breach of one provision of the ECHR and then omitting to consider the application of other provisions on which arguments have been made. It is likely that the ECtHR’s apparent preference for the use of Article 8 as opposed to Article 3 in its earlier jurisprudence, of which Bevacqua and S. v Bulgaria is an example, was due simply to the fact that it can be more straightforward to establish a breach of Article 8 than it is to establish a violation of Article 3.          

However, the difficulty with an approach based on practicality is that it can be mistaken for an approach founded on principle, and indeed such problems became apparent with the 2013 case of Valiuliene v Lithuania. In this case, the State argued that the ill-treatment to which the applicant, a victim of domestic abuse, had been subjected had not been sufficiently severe to fall within the scope of Article 3. The State nonetheless presented the ECtHR with a unilateral declaration acknowledging a violation of Article 8. The Court refused to accept this declaration, found a breach of Article 3 and stated that it was unnecessary to examine the complaint under Article 8 as a violation of Article 3 had already been found. Interestingly, there appeared to be nothing to distinguish the violence suffered by the applicant in Valiuliene as regards level of intensity or severity of injuries sustained from that experienced by the applicants in other cases involving domestic abuse where the ECtHR had found breaches of Article 8 and omitted to consider Article 3. However, if the Court had accepted the State’s unilateral declaration of a violation of Article 8, it would in effect have been accepting that there had been no violation of Article 3 in this case; it seems that such an outcome was not desired by the ECtHR. Following Valiuliene, Article 3 was used much more extensively in cases involving domestic abuse. This can be seen by the fact that, unlike Bevacqua and S. v Bulgaria where a breach of Article 8 was found, the Court in A.E. v Bulgaria held that Article 3 had been violated.  

It is also noteworthy that of the three Bulgarian cases involving domestic abuse, A.E. v Bulgaria is the first of these where a breach of Article 14 has been found. This could be said to be reflective of the increased use of Article 14 by the ECtHR, both in cases involving domestic abuse and more broadly. When the ECtHR issued its judgment in Bevacqua and S. v Bulgaria in 2008, the Court had not yet found a breach of Article 14 in a domestic abuse case. However, in its 2009 judgment in the domestic abuse case of Opuz v Turkey, the ECtHR took the step of framing such abuse as a form of gender-based violence and found a violation of Article 14. This development began an upsurge in the use of Article 14 in cases involving domestic abuse, as demonstrated by the fact that, unlike in Bevacqua and S. v Bulgaria, Article 14 was considered by the ECtHR both in its March 2022 judgment in Y and Others v Bulgaria and its May 2023 judgment in A.E. v Bulgaria. 

Nevertheless, a breach of Article 14 was not ultimately found in Y and Others v Bulgaria. In this case, the first applicant’s daughter had been killed by her husband. The ECtHR found that there had been a violation of Article 2 of the ECHR (the right to life) and that the State authorities had not responded promptly to complaints and had not carried out a proper assessment of the risk involved in view of the context of domestic abuse. However, although the applicants had also argued that the failings in question had been due to a general complacency on the part of the authorities towards violence against women, the ECtHR was of the view that this had not been the case and there had thus been no violation of Article 14 read in conjunction with Article 2. Although the Court held that, as in all States in the Council of Europe, domestic abuse in Bulgaria predominantly affected women, no evidence had been presented to suggest that the Bulgarian authorities sought to dissuade women from reporting such abuse, or that the courts systematically delayed the issuing of protection orders.

The ECtHR did note in Y and Others v Bulgaria that the State authorities did not collect comprehensive statistics regarding the way domestic abuse cases were handled by the law-enforcement authorities, and viewed this as ‘a serious omission’ (para. 125). Nevertheless, the applicants had not provided sufficient evidence to substantiate their assertion that the State authorities had remained generally complacent in cases involving domestic abuse; and it could not be said that the law in Bulgaria wholly failed to address such abuse or that it placed undue obstacles in the way of women who wished to complain of domestic abuse. The ECtHR was not therefore of the view that the applicants had succeeded in making a prima facie case of a general and discriminatory passivity on the part of the State authorities in relation to domestic abuse directed against women, or that there was any proof of anti-female bias by the officials dealing with the specific case in question.

By contrast, a violation of Article 14 was found in A.E. v Bulgaria. It is of particular note that the ECtHR stated in this case that the absence of official comprehensive statistics kept by the authorities could no longer be explained as a mere omission, ‘given the level of the problem in Bulgaria and the authorities’ related obligation to pay particular attention to the effects of domestic violence on women and to act accordingly’ (para. 120). This judgment therefore serves to highlight the need for States to collect and retain comprehensive official statistics relating to issues such as domestic abuse, and provides a salutary warning to States that continual failure to do so may contribute towards a finding of a violation of Article 14.            

Conclusion

In conclusion, a comparative study of the Bulgarian domestic abuse cases serves to demonstrate the way the approaches of the ECtHR to domestic abuse have evolved over a relatively short space of time.  No longer is Article 8 frequently used as a basis for findings of violations of the ECHR in such cases; rather breaches of Articles 3 and 14 are now found. In its judgment in A.E. the ECtHR showed a high degree of understanding of domestic abuse. The case also serves to emphasise the necessity for States to collect comprehensive statistics in relation to issues such as domestic abuse, and demonstrates that a continual failure to do so may contribute towards a State being found to be in breach of Article 14.