CASE OF TUNIKOVA AND OTHERS v. RUSSIA

TUNIKOVA AND OTHERS v. RUSSIA JUDGMENT

134. The Court notes that the case of Eduard Popa did not concern the obligation to prevent a risk of ill-treatment; a violation of Article 3 was found on account of the authorities’ failure to carry out an effective investigation into the ill-treatment of the applicant. A situation relevantly comparable to that of Ms Gracheva arose in another Russian case in which a violation of Article 3 resulted from the authorities’ failure to take the requisite measures to prevent harm to an applicant’s life and limb. The police had abandoned the applicant with a head injury lying unconscious on the street, after being assaulted by private individuals, without rendering him any assistance, which resulted in his permanent disability. The Court awarded compensation for a loss of income and future medical expenses (see Denis Vasilyev v. Russia, no. 32704/04, §§ 105-22 and 169, 17 December 2009).

135.The Court further reiterates that, as regards positive obligations under Article 3, it is sufficient to establish that the authorities had not taken all steps which could have been reasonably expected of them to prevent the risk of harm of which they had or ought to have had knowledge. The applicant is not required to show that “but for” the failing or omission of the public authority the ill-treatment would not have occurred (see Premininy

v.Russia, no. 44973/04, § 84, 10 February 2011). In other words, to establish a causal link between a lack of protection measures and the harm suffered by Ms Gracheva, it is sufficient to find, as the Court did above, that the domestic authorities had failed to take measures to protect her from the known risk of violence. She did not need also to show that she would not have been harmed had the protection measures been made available.

136.The Court is satisfied that the claim in respect of the previously incurred rehabilitation expenses was properly substantiated and awards the amount claimed under this head to Ms Gracheva. However, the claims concerning loss of future earnings and future medical expenses were not based on actuarial calculations of the capital required to maintain a certain level of income and to fund future expenses. The amounts claimed were obtained by multiplying the costs of prosthetics and past wages by the average life expectancy. This method of calculation is not in line with the Court’s approach to the calculation of future losses (see Mikheyev, cited above, § 161, and Denis Vasilyev, cited above, § 168). It will therefore have to deal with the claim on an equitable basis based on its own assessment of the situation (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 82, 20 December 2007, and Denis Vasilyev, cited above, § 169).

137.Taking into account Ms Gracheva’s age, her position as primary caregiver of her minor children, the nature of her disability which restricts the options of accessible employment, and her lifelong dependence on expensive adaptive aids, the Court awards her EUR 300,000 for the loss of earnings and future medical expenses, for a total of EUR 330,660 in respect of pecuniary damage, plus any tax that may be chargeable.

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B.Non-pecuniary damage

138.The applicants asked the Court to determine the appropriate amount of compensation in respect of non-pecuniary damage.

139.The Government did not comment on this part of the claims.

respect of non-pecuniary damage, plus any tax that may be chargeable.

C.Costs and expenses

141.The applicants claimed the following amounts in respect of legal

Ms Gracheva each EUR 6,600. They submitted copies of contracts for legal services.

142. The Government submitted that copies of contracts did not show that the expenses had been actually incurred and reasonable as to the quantum. Ms Tunikova only submitted evidence of payment of 110,000 Russian roubles in domestic proceedings; Ms Gershman did not show that she actually needed the services of three legal teams to represent her, and Ms Petrakova and Ms Gracheva produced no receipts or payment orders.

143.Regard being had to the documents in its possession, the Court considers it reasonable to award EUR 5,000 each to the applicants in respect of costs and expenses, plus any tax that may be chargeable to them.

D. Default interest

144.The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

V. APPLICATION OF ARTICLE 46 OF THE CONVENTION

145.The relevant parts of Article 46 of the Convention read:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution ...”

146. The Court reiterates that a judgment in which it finds a breach of the Convention imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers,

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TUNIKOVA AND OTHERS v. RUSSIA JUDGMENT

general measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible its effects. With a view to helping the respondent State to fulfil that obligation, the Court may indicate the type of general measures that might be taken in order to put an end to the situation it has found to exist (see Tomov and Others v. Russia, nos. 18255/10 and 5 others, § 173, 9 April 2019).

147.The Government submitted that neither the applicants’ individual circumstances nor the current state of Russian law in the sphere of domestic violence indicated the existence of an underlying systemic problem or structural deficiency calling for indication of general measures under Article 46 of the Convention.

148.The applicants replied that the alleged violations of the Convention were not a feature of their individual cases but represented a structural and systemic dysfunction of the State’s legal system in cases of domestic violence. The attitude of law enforcement, investigative and prosecutorial authorities in Russia was characterised by a lack of understanding and knowledge of the dynamics of domestic violence, its systematic nature, the varied forms of physical or psychological violence, its inherent risks and consequences. The existing legal framework was not sufficient to address this complex problem, and the proposed legislation also fell short of international standards. It failed to establish a sufficiently comprehensive definition of domestic violence, to include in its ambit persons who were not related by blood or by a registered marriage, and to provide for protection orders restricting the perpetrator’s physical proximity to the victim and accompanied with dissuasive sanctions for their infringement. The draft law also did not provide for training programmes for police officers, prosecutors and other crucial actors who would be tasked with implementing the legislation.

149.The Court reiterates that a systemic or structural problem stems not just from an isolated incident or a particular turn of events in individual cases but from defective legislation when actions and omissions based thereon have given rise, or may give rise, to repetitive applications to the Court (see Novruk and Others v. Russia, nos. 31039/11 and 4 others, § 131, 15 March 2016). The problem underlying the violations of the Convention which the Court has found in the present case stems from the legislation itself, and the findings extend beyond the sole interests of the applicants in the instant case. Unable to secure the protection against domestic violence and an effective investigation of violent incidents at national level, the applicants have been required to seek relief in the Court.

150.Several years after the events in this case and more than two years after the Volodina judgment, in which the Court first identified structural defects of Russian law, the situation has not changed. Legislation on domestic violence has not been passed or brought before Parliament. Public discussion on draft law on the prevention of domestic violence has not been

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followed with concrete action (see paragraphs 63-64 and 67 above). The National Action Strategy for Women for 2017-2022 conceptualises violence against women as “an indication of social disadvantage and characterises it as a problem stemming from substance abuse”, without providing a definition of the term “domestic violence” or articulating policy goals (see section 4.1 of the Research on National Action Strategy in paragraph 66 above). No protection measures have been made available in any form to victims of domestic violence, causing them to apply to the Court for an indication of interim measures under Rule 39 of the Rules of Court. The COVID-19 pandemic has further aggravated the situation and brought about a substantial increase in the number of domestic violence complaints (see paragraph 65 above).

151.In view of the continued absence of legislation addressing the issue of domestic violence at national level and the urgency of the matter concerning, as it does, the possibility for victims to live a life free from violence, the Court considers that the Government’s obligations under the Convention compel it to introduce legislative and other changes without further delay. The need for such amendments is all the more pressing as large numbers of people affected by violations of a fundamental Convention right have no other choice but to seek relief through time-consuming international litigation. This situation is at odds with the principle of subsidiarity, which is prominent in the Convention system (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 211, 10 January 2012). For the respondent Government to comply with its Convention obligations, clear and specific changes are required in the domestic legal system that would allow all persons in the applicants’ position to obtain adequate and sufficient redress for such violations at domestic level.

152.The Court acknowledges that domestic violence is a complex phenomenon affecting, as it does, all social strata and occurring in a variety of forms, intensity and dynamics, frequently invisible to outsiders and hidden from authorities. To discharge their obligations under the Convention, the domestic authorities must accordingly develop a comprehensive and targeted response encompassing all areas of State action including legislation, public policy, programmes, and institutional frameworks and monitoring mechanisms.

153.The Court has found above that the authorities’ failure to address reports of domestic violence stems from lacunae in the substantive and procedural law. To address these shortcomings, the authorities must promptly revise or amend legislation to bring it into compliance with the Convention and international standards on prevention and punishment of domestic violence. They must introduce a legal definition of domestic violence which is sufficiently comprehensive in its scope to cover acts of violence in various forms, including physical, sexual, psychological or economic violence, manifestations of controlling and coercive behaviour,

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stalking and harassment, whether they take place physically or in cyberspace. The acts of domestic violence should never be considered in isolation but rather as a single course of conduct or a series of related incidents (see paragraph 94 above). The definition of domestic violence should be part of a comprehensive framework for the protection of, and assistance to, all victims which should in particular allocate the responsibilities of State agencies and public officials tasked with responding to, and preventing, domestic violence, create an interagency mechanism for cooperation between State agencies and other stakeholders to prevent domestic violence, establish legal mechanisms for protecting and compensating victims, and fund rehabilitation programmes for perpetrators of domestic violence.

154. Domestic substantive law must criminalise and make punishable by appropriate penalties all acts of domestic violence, including battery and forms other than injuries (see paragraph 86 above). The protection from domestic violence must include all current and former members of a family or domestic unit and current and former spouses and partners, whether living under the same roof or separated. Domestic violence affects married couples as much as people who have not formalised their relationship such as Ms Tunikova in the present case or Ms Volodina in the case of Volodina. It does not end with the dissolution of a marriage (see paragraph 32 above, in which the proceedings were discontinued for the sole reason that Ms Gershman was no longer legally related to the perpetrator after the divorce). The Court notes in this connection the CEDAW’s view that “as long as the violence towards a former spouse or partner stems from that person being in a prior relationship with a perpetrator, the time that has elapsed since the end of the relationship is irrelevant, as is whether the persons concerned live together” (see O.G. v. the Russian Federation, Communication No. 91/2015, § 7.4, 6 November 2017).

155. Domestic procedural law must enable the authorities to investigate domestic-violence cases of their own motion as a matter of public interest and to punish those responsible for such acts (see Volodina, cited above, § 99). Placing the burden of gathering incriminating evidence and upholding the charges in court onto the victim is incompatible with the State’s obligation to investigate all cases of ill-treatment under Article 3 of the Convention (see paragraph 117 above). A complaint by a victim, a statement about injuries by a health care professional or reports by third parties about suspected domestic violence should be sufficient to trigger an investigation which should be conducted by the authorities in a diligent and gender-sensitive manner so as to avoid re-traumatising the victims through requiring them to repeat their testimony or confront the perpetrator. Police officers must be provided with protocols and instructions outlining the specific steps to investigate complaints of domestic violence. All allegations of domestic violence must be investigated promptly, thoroughly and

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impartially, with criminal proceedings being initiated in all cases of domestic violence and perpetrators brought to trial timely and expeditiously. If the victim withdraws the complaint, should that possibility remain in domestic law, the legislation should require the authorities to consider what the reasons for withdrawing the complaint were and whether the seriousness of the attacks would require them to pursue the proceedings (see Volodina, cited above, § 84).

156.A protocol for handling domestic violence complaints to be put in place must cover all aspects of the State’s positive obligation to protect victims from the risk of recurrent violence (see paragraph 104 above). There should be a requirement that such complaints be processed “immediately”, with special diligence required in domestic violence cases, and that risk assessment be “autonomous”, “proactive” and “comprehensive”. To comply with this obligation, consideration should be given to using standardised risk assessment tools and checklists and documenting the process of risk assessment and the information on all relevant risk factors and elements of the case obtained from the victim and other State agencies. The victim should be informed of the outcome of the risk assessment and given advice and guidance on the available protective measures.

157.As regards adequate and effective measures of protection for victims of domestic violence, the Court considers it particularly important that such measures be made available without further delay. The domestic legislation should be amended to provide for easily obtainable extra-judicial and judicial protection measures variously known in other jurisdictions as “restraining orders”, “protection orders” or “safety orders” which aim to forestall a recurrence of domestic violence and to safeguard the victim of such violence by typically requiring the offender to leave the shared residence and to abstain from approaching or contacting the victim (see Volodina, cited above, § 88, for examples of such measures in selected European jurisdictions). While a variety of legislative solutions can be envisaged, in order to ensure the effective protection of the victim, the Court holds that the protection measures should possess the key features identified by the CEDAW Committee and the UN Special Rapporteur on violence against women (ibid., §§ 56 and 58). In particular, protection orders should be made available independently of any other legal proceedings, such as a criminal case against the perpetrator, and based on a standard of proof with respect to the victim’s evidence which is not the criminal standard of proof. They should require the perpetrator to maintain a specified distance from the victim at all times and prohibit the perpetrator from attempting to contact the victim in any way, whether offline or online. Compliance with the terms of the protection order should be rigorously and continually monitored by the authorities, and failure to comply should be criminalised and accompanied by sufficiently dissuasive and deterrent sanctions.

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158.Lastly, with a view to addressing the situation of inequality and de facto discrimination against women which the Court has found to be in breach of Article 14 of the Convention, taken in conjunction with Article 3, the domestic authorities should put into place an action plan for changing the public perception of gender-based violence against women (see Article 2 of the CEDAW Convention and the CEDAW Committee’s General recommendation No. 35 on gender-based violence against women, cited in Volodina, cited above, §§ 51 and 55) and disseminate information on available legal and other remedies for victims. Mandatory training in domestic-violence dynamics should be provided for judges, police officers, prosecutors, medical professionals, social workers and other officials who may come into contact with victims. The authorities should also design a monitoring mechanism for accurate collection of comprehensive statistics on prevention and punishment of domestic violence and recording of statistical data on domestic violence disaggregated by sex and age and nature of the relationship between the perpetrator and the victim or victims, including the complaints of domestic violence which did not result in the institution of administrative or criminal proceedings (see the CEDAW Committee’s concluding observations on the eighth periodic report of the Russian Federation, cited in Volodina, cited above, § 64, and Section 4.4 of the Research on National Action Strategy for Women in paragraph 66 above).

159.Pending the implementation of the above measures by the respondent State in accordance with Article 46 of the Convention, the Court will continue to deal with similar cases in a simplified and accelerated form in accordance with its well-established case-law.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.Decides to join the applications;

2.Declares the applications admissible;

3.Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

4.Holds that there is no need to examine the complaint under Article 13 of the Convention;

5.Holds that there has been a violation of Article 14 of the Convention, taken in conjunction with Article 3;

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6.Holds

(a)that the respondent State is to pay, within three months from the date

converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)EUR 330,660 (three hundred and thirty thousand six hundred and sixty euros) to Ms Gracheva, plus any tax that may be chargeable, in respect of pecuniary damage;

thousand euros) to Ms Gracheva, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 5,000 (five thousand euros) to each applicant, plus any tax that may be chargeable to them, in respect of costs and expenses;

(b)that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7.Dismisses the remainder of the applicants’ claim for just satisfaction;

8.Holds that the respondent State must introduce, without further delay, amendments to the domestic legal and regulatory framework in order to bring it into line with the Court’s indications in paragraphs 151-58 of the present judgment.

Done in English, and notified in writing on 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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APPENDIX

List of applications

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