January 31, 2025
By Dr. Sibel Yılmaz Coşkun
In its judgment Vieru v. the Republic of Moldova (19 November, 2024), the European Court of Human Rights ruled that Moldova violated, among other rights, its substantive obligations under Article 3 ECHR by failing to provide adequate legal protection to T. and take effective measures against prolonged domestic abuse. However, the Court dismissed the evaluation of T.’s death, by falling from the fifth floor, as speculative in relation to the State’s substantive obligations under the right to life.
As the joint partly dissenting opinion rightly points out, the absence of an assessment on suicide in the context of domestic violence which would remind the State of its obligation to support and protect victims highlights a crucial aspect of the case that should have been more thoroughly addressed. Judges Krenc and Sârcu succinctly capture this concern. However, the exclusion of this concern from the majority opinion shows that there is a need for a wider discussion on the State’s responsibilities, especially in cases where domestic violence might lead to suicide.
This post begins by summarizing the facts and judgment, before offering a detailed analysis that focuses on the perspective outlined in the dissenting view. It concludes with a reflection on the broader implications of the case.
The applicant, Mr. Viorel Vieru, filed a complaint against Moldovan authorities, claiming they failed to protect his sister, T., from ongoing domestic violence and neglected to properly investigate her death. T. had suffered violence from her husband, I.C., both during their marriage and even after their divorce. Despite six protection orders – one of which was rejected – the abuse continued. A seventh protection order was issued after T. fell from the fifth floor while attempting to escape I.C.’s abuse, leading to her death on 12 October 2016.
The criminal proceedings that followed T.’s complaint can be summarized as follows: On 14 November 2014, the Buiucani prosecutor launched a criminal investigation into I.C. for domestic violence, focusing on an incident involving both physical and psychological abuse. Further investigations in 2015 were related to violations of the protection orders, which had been repeatedly breached by I.C., as well as additional incidents of domestic violence. These cases were eventually consolidated and sent to court.
On 23 March 2016, the Buiucani District Court found I.C. guilty of three counts of domestic violence and sentenced him to two years’ imprisonment, suspended for three years with probation, while also ordering him to attend a treatment program. However, the court dismissed the charge of deliberate failure to comply with a court judgment, citing it as time-barred (§ 38). At that time, domestic violence charges applied only to former family members who lived together, a condition that was later removed in September 2016 (§ 54). I.C. appealed, arguing that after their divorce, he was no longer considered a family member under this provision. Initially, T. and the prosecutor also appealed, contending that the sentence was too lenient. However, the prosecutor later changed his stance, seeking to reclassify I.C.’s actions as an administrative offence and requesting the discontinuation of the proceedings as time-barred (§ 41). This shift in the prosecutor’s position highlighted legal uncertainties surrounding the handling of domestic violence cases.
The Chișinău Court of Appeal sentenced I.C. to two years in prison, deeming imprisonment appropriate due to the repeated violent incidents, and ruled that he should be considered a ‘family member’ under the relevant legal provisions (§ 42). However, the Supreme Court of Justice overturned the decision, citing the failure to consider the prosecutor’s request to reclassify I.C.’s actions and issues with the assessment of protection order violations, ordering a fresh examination of the case (§ 43-45).
On 8 November 2017, the Chișinău Court of Appeal dismissed the charge of violating protection orders as being time-barred. Regarding the domestic violence charges, the court referred to amendments in domestic law, stating that I.C.’s actions could be reclassified as an administrative offence, given the absence of minor injuries. Since the case was time-barred and I.C. and T. were no longer considered family members after their divorce, the acts could not be classified as domestic violence. The Supreme Court of Justice upheld the decision of the appeal court on 28 February 2018, making it final.
Criminal proceedings concerning incitement to suicide or attempted suicide were initiated on 8 September 2016; however, the case was closed in July 2018 due to insufficient evidence.
The applicant alleged that the Moldovan authorities failed to prevent domestic violence against his sister, T., which ultimately led to her suicide, and that the investigation into the violence was inadequate. The Court focused on the State’s positive obligations under Articles 2 and 3 of the Convention, particularly the failure to prevent and properly investigate domestic violence.
The Court identified two key issues: The domestic violence suffered by T. and her subsequent death (§ 83).
Regarding domestic violence, the Court found that Moldovan authorities failed to investigate psychological violence, stalking, and harassment, focusing only on physical injuries. Despite protection orders, T. did not receive adequate protection, and the criminal proceedings were discontinued as being time-barred, leaving I.C. unpunished. This failure to address the full scope of domestic violence led the Court to conclude a violation of Article 3 (§ 84-89).
In relation to T.’s death, the Court found a procedural violation of Article 2 due to an insufficient investigation. Although an investigation into ‘incitement to suicide’ was initiated, it was narrowly focused on a single event (August 2016) and failed to consider the broader context of ongoing domestic violence. The Court emphasized that domestic violence leading to suicide should have been addressed by provisions criminalising such violence, including any systemic factors contributing to T.’s death. Additionally, it underlined that investigations into the possibility of gender-motivated violence should be conducted with special diligence (§ 92).
The Court held that, due to the lack of an effective investigation, it could not determine whether T’s death was an accident, suicide, crime, or gender-motivated crime without resorting to speculation. As such, it deemed itself unable to make ‘conclusive findings’ regarding the State’s alleged responsibility. The Court, therefore, restricted its focus to whether the investigation satisfied the procedural requirements of Article 2 and directed its attention to the obligations under Article 3 (§ 97-98).
Taking into account the medical and psychological reports, the Court found the severity of the treatment described in the applicant’s complaint violated Article 3. It highlighted the inadequacy of Moldova’s domestic violence framework and the authorities’ failure to prevent its recurrence (§ 99-100).
The Court observed that the perpetrator faced only administrative fines and police warnings due to legal reforms that classified minor physical violence as administrative offenses and excluded psychological violence from the Criminal Code. It ruled that Moldova’s legal framework was inadequate to provide effective protection, especially in cases involving divorced spouses. Consequently, it ruled that the State violated its positive obligations under Article 3 (§ 101-106).
The Court established that the authorities failed to take effective action despite repeated reports of violence. They neither assessed the real and immediate nature of the risk nor implemented protective measures. Although police responded promptly in some cases, the ineffectiveness of protection orders and lack of adequate rehabilitation led to the perpetrator’s impunity and continued violence. Accordingly, the Court concluded that these failures breached the State’s positive obligations under Article 3 (§ 107-119).
The Court held that institutional tolerance of gender-based violence and discriminatory attitudes towards the applicant’s sister violated Article 14, in conjunction with Articles 2 and 3 (§ 121-135).
The Court unanimously ruled violations of the rights discussed earlier, except for the complaint concerning the substantive obligations under Article 2. Two judges dissented, expressing objections to the decision not to examine this particular complaint. This analysis focuses on the Court’s decision from this perspective, emphasizing the dissenting opinion we advocate and underscoring its significance.
As detailed further below, reconciling the Court’s acknowledgment of the inadequacy of the legal framework and its implementation regarding domestic violence (which led to a violation of Article 3) with its decision to disregard the connection between this inadequacy and the resulting death under Article 2 presents a significant challenge.
When examining the Court’s reasoning, two interconnected points emerge: i. Due to insufficient investigation or evidence, commenting on the cause of death would be speculative. ii. The Court is unable to determine the State’s responsibility for the death based on what it considered to be ‘conclusive findings’ (§ 97). Before analysing the issue of holding the state accountable, I will briefly touch upon the matter of ‘speculation’.
If we were only addressing the fall incident on the night of August 22, without any prior history of domestic violence, the Court’s reasoning about the possibility of ‘speculation’ regarding the cause of death might have been acceptable. However, the Court was aware that the victim’s tragic death – after falling from the fifth floor while attempting to escape her assailant – resulted from years of ongoing violence.
While the Court referred to the cause of death as speculative – asking whether it was ‘an accident, suicide, crime, or gender-motivated crime’ (§ 97) – this does not make the State’s responsibility for the death speculative. The victim’s death might have been the result of either an escalation of violence by the aggressor, or the victim’s vulnerability to suicide (Dissenting opinion, § 4). In both cases, therefore, the State should have been held responsible for its failure to adequately protect the victim and prevent such a tragic outcome. The Court should have more thoroughly examined its substantive responsibility in this context.
In relation to the risk to life, alongside the requirement for operational measures to prevent harm (Dissenting opinion, § 3), the state also bears the substantive obligation to establish effective legal frameworks (Stoyanova, 2023). It is important to note that by not addressing the substantive limb of Article 2, the Court overlooked evaluating the inadequacy of the legal framework concerning domestic violence, too. Although the Court acknowledged certain issues in this regard within the scope of Article 3 (§ 101-106), it did not fully explore the legal framework necessary to protect life. While regulatory frameworks play a broader preventive role, the focus here will be on operational measures, as they specifically address the state’s to actively protect individuals (Stoyanova, 2023, p. 203).
The state’s positive obligation to take operational measures regarding the right to life arises where it knew, or ought to have known, that a person’s life is at real and imminent risk due to the criminal actions of a third party (Osman v. The United Kingdom, 28 October 1998, § 116). This involves evaluating two key elements: (i) the existence of a real and immediate risk, and (ii) the State’s awareness or the expectation to be aware of this risk.
Regarding the first element, the Court has previously established that in cases of ongoing domestic violence, the immediacy of the danger to the victim is almost indisputable (Tkhelidze v. Georgia, no. 33056/17, § 53, 8 July 2021). Perpetrators with a history of domestic violence present a serious risk of further harm, which could be lethal. As for the second element, authorities are required to carry out an ‘autonomous, proactive, and comprehensive risk assessment’ to assess whether a victim of domestic violence faces a real and immediate risk to life (Kurt v. Austria [GC], no. 62903/15, 15 June 2021) (Dissenting opinion, § 3).
Throughout this analysis, it has been demonstrated that raising the State’s responsibility in this case is a compelling request. The Court is expected not to deviate from its established case law but to remain consistent with it.
While our title refers to a ‘paradoxical consequence’, the relationship between fighting to the very end to live and ultimately deciding to end one’s own life may not be as surprising as it seems. As highlighted in the dissenting opinion (§ 5) and supported by reports (WHO 2005; WHO 2021), there is a strong correlation between experiences of violence, psychological distress, and the increased risk of suicide among women.
Even though the Court did not explicitly address this issue, the need of a risk assessment remains critical. Identifying suicide risks in domestic violence cases may be challenging, but they are not fundamentally different. The truth, though concealed, is likely hidden beneath a veil that the State could lift, but seems unlikely to do so.
The State’s responsibility to prevent suicide risks is rooted in consistent case law concerning the right to life. The aim is not to impose an unreasonable burden, but to ensure that the authorities take reasonable measures to prevent suicide risks ‘where the authorities knew or ought to have known of the existence of a real and immediate risk of suicide’ (Dissenting Opinion, § 6). The point at which the suicide risk should have been identified varies depending on the specifics of each case. A comprehensive risk assessment would have been crucial in identifying not only the physical harm but also the escalating threat to the victim’s life, exacerbated by the violence perpetrated by the aggressor and her vulnerability to suicide (Dissenting opinion, § 3). The victim’s previous suicide attempt (§ 31) and early signs of depression (§ 14) clearly indicated the risk. A critical turning point, as noted by the Court (§ 117) and reiterated in the dissenting opinion (§ 7), was the aggressor’s release on probation, likely increasing the victim’s ‘vulnerability, helplessness, and entrapment’. Given the rejection of the protection order request on August 8, 2016, and the aggressor’s return to the victim’s home on August 22, the authorities should have recognized both the violence and the suicide risk.
An important aspect is that the victim’s son’s suicide following her fall highlights the broader impact of psychological violence, affecting not only the victim but also her family (§ 66, 69). This reinforces the State’s responsibility to recognize the link between domestic violence and suicide and to implement preventive measures. Without such an assessment, the real and immediate threat to her life was unfortunately overlooked, further demonstrating the failure of the State to fulfill its positive obligations.
Having established that the risk of suicide was or ought to have been known, the next critical question is whether the State fulfilled its positive obligations to address this risk. There is no need for ‘conclusive findings’ regarding the State’s responsibility for the death, as the test under Article 2 does not require proving that the death would not have occurred ‘but for’ the authorities’ failure or omission (Boychenko v. Russia, no. 8663/08, § 95, 12 October 2021; Dissenting Opinion, § 8 ). The Court’s role is to assess, based on all the circumstances, whether ‘the authorities did everything thatcould reasonably be expected of them to prevent the risk from materializing’ (Dissenting opinion, § 6; also Opuz v. Turkey, no. 33401/02, § 130, 9 June 2009).
Fulfilling the protection obligation likely requires a nuanced, process-oriented approach, as the evaluation of positive obligations may differ at different stages, rather than being an all-or-nothing situation. The State’s duty should have been clear, particularly given the victim’s repeated attempts to seek help from public authorities, even after the final incident (§ 30). It was expected to do more than offer temporary, likely ineffective measures (e.g., offering shelter placement, § 112) after the victim had endured long-term violence; it should have implemented preventive measures from the outset, ensuring her sense of security regarding protection from the aggressor, and addressing the psychological impact of the violence to safeguard her mental health. (For a discussion on the operational measures being individually targeted, see Stoyanova, 2023, p. 215-216).
In this significant ruling on domestic violence, the Court’s decision to avoid assessing the substantive limb of the positive obligation under Article 2, despite having sufficient material at hand – much of which it itself referenced in its analysis under Article 3 – reflects a stance that is difficult to justify.
If the Court were to dismiss substantive analysis simply due to the lack of ‘conclusive findings’ whenever there is doubt about the reason of death, it could lead to an unjust outcome for the victim of domestic violence, to the benefit of the violator state. Such an approach risks undermining the effectiveness of the state’s obligations under Article 2, making it increasingly difficult to offer the necessary protection, especially for those at risk of suicide.
Without reiterating the psychological condition so aptly described in the dissenting opinion, it must be emphasised: Unfortunately, women who exhaust all means of seeking protection from public authorities may tragically face the devastating consequence of suicide. Had the Court considered this risk from a broader perspective, it could have provided a more robust framework for evaluating states’ positive obligations regarding domestic violence, thereby confronting them with their responsibility to protect vulnerable individuals from such irretrievable outcomes.