European Court of Human Rights

 

 

 

THIRD SECTION

 

CASE OF POLSHINA v. RUSSIA

(Application no. 65557/14)

 

 

 

 

JUDGMENT

STRASBOURG

16 June 2020

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

 

In the case of Polshina v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Svetlana Sergeyevna Polshina (“the applicant”), on 26 September 2014;

the decision to give notice of the application to the Russian Government (“the Government”);

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 19 May 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The case concerns the Russian authorities’ failure to prevent and prosecute acts of domestic violence against the applicant and to address the discriminatory effect of domestic violence on women in general.

THE FACTS

1.  The applicant was born in 1987 and lives in St Petersburg. She was represented before the Court by Ms V. Frolova, a lawyer practising in St Petersburg.

2.  The Government were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Galperin.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  In 2009, the applicant married P. and gave birth to the boy R. They lived in P.’s flat. From the early months of her pregnancy, P. manifested controlling and coercive behaviour.

5.  On 13 August 2011 P. grabbed the applicant by the chin and hit her head against the door frame. She had the injuries recorded in the trauma unit and complained to the Admiralteyskiy district police department about the assault, threats of violence and insults. On 22 August 2011 the police declined to open criminal proceedings. They talked to P. who said that he “had shaken her up to calm her down”. The police held that verbal threats which had not been accompanied by any physically threatening conduct did not constitute an offence under Article 119 of the Criminal Code (making threats of death or causing bodily harm). They acknowledged that P.’s actions could be constitutive of the offence of battery under Article 116 which was subject to a private prosecution regime requiring the victim to apply directly to a justice of the peace.

6.  The applicant filed for divorce on the grounds of spousal violence. Her application was approved on 4 October 2011. The former spouses agreed that their son would live with the mother on weekdays and with the father on weekends.

7.  In early 2012, the applicant and P. made another attempt at living together. The couple separated after P. had locked up the applicant and their son for twenty-four hours inside the flat without keys or mobile phone. The applicant moved out and did not inform P. of her new address.

8.  On 3 July 2012 the applicant complained to the police that P. had told her on the phone that he would kill her and “gouge her eyes out”. She emphasised that that was not the first menacing incident and that she feared for her life. On 9 July 2012 the police found no indications of any criminal conduct, as P. had denied making threats. On 20 March 2013 the supervising prosecutor set that decision aside and directed the police to interview the applicant’s friend as a potential witness. On 25 April 2013 the police refused again to open a criminal case. The inspector conceded that there were formal indications of an offence under Article 119 of the Criminal Code. However, in the absence of eye-witnesses, the actual sequence of events or the guilty party were impossible to establish. Nor was there any “objective information” showing that the applicant had reasons to fear that threats would be carried out. On 9 January 2014 the supervising prosecutor quashed the police’s decision and ordered a further inquiry.

9.  On 20 November 2012, as the applicant was picking up the son from P., he grabbed her by the chin and told her that she “would not last much longer” and “would die before [him]”. The applicant had the bruises on her face recorded and reported the incident to the police. On 22 December 2012 the police refused to open an investigation, citing the verbal nature of the threats and the classification of battery as a private-prosecution offence.

10.  On 4 December 2012 the applicant and P. had an argument about their son’s residence. P. snatched the child from her and started running away. When she caught up with him, he stopped and pushed her. She fell on the icy pavement and hurt both knees. She took medical evidence of the trauma to the police. The police refused, on 7 December 2012, to open criminal proceedings on the grounds that it was impossible to establish the sequence of events and the guilty party in the absence of eye-witnesses. On 20 March 2013 the supervising prosecutor directed the police to commission a medical assessment of the applicant’s injuries. On 31 March 2013 the police issued an identically worded decision declining institution of criminal proceedings. On 9 January 2014 the supervising prosecutor set aside that decision and ordered a further inquiry.

11.  On 14 January 2013 the applicant filed a new complaint with the police. She listed previously reported incidents, enclosed medical certificates and gave names and contact details of witnesses. She submitted that she feared for her life and safety. On 22 January 2013 the police inspector held that the complaint did not disclose indications of any criminal offence. Without taking statements from the applicant, P. or any witnesses, he held that former spouses were having arguments over the residence of their child which resulted in “situations of conflict and threats being made against the other spouse”. In his view, the issue had to be resolved in civil proceedings. On 28 January 2013 the supervising prosecutor quashed the decision and asked the police to carry out an additional inquiry. On 28 March 2013 the police issued an identically worded decision which the prosecutor set aside on 9 January 2014.

12.  The applicant applied for a judicial review of various police decisions declining institution of criminal proceedings. On 11 February, 10 April 2013, 16 January 2014 and other dates St Petersburg courts discontinued examination of her applications on the grounds that the supervising prosecutors had already set the impugned decisions aside and ordered additional inquiries. The applicant challenged two of the discontinuation decisions on appeal. She pointed out that the prosecutor had intervened on formal grounds and that an assessment of the scope of the inquiry and its impact on her rights had not been made. On 11 April 2013 and 25 March 2014 the St Petersburg City Court rejected the appeals in a summary fashion.

13.  On 1 April 2014 the Leninskiy District Court issued, at the applicant’s request, a “special ruling” (частное постановление) addressed to the chief of the Admiralteyskiy District police department. The court pointed out that the district inspector’s failure to remedy the defects identified by the supervising prosecutor had breached the requirements of procedural law and undermined her right of access to justice.

14.  On 31 May 2013 the applicant issued private-prosecution proceedings against P. for two acts of battery of 13 August 2011 and 20 November 2012. Over the following year the justice of the peace held twenty-three hearings. The applicant who had just given birth to her second child was required to appear in person at each court session. On 27 May 2014 she applied for a discontinuation of proceedings on the grounds of a settlement with P. The justice granted the application, noting that the offence in question was one of a lesser gravity, that P. had had no criminal record, that he had apologised to the applicant and paid damages. The nature and amount of damages were not specified.

15.  On 27 June 2014 the police issued new decisions refusing to open a criminal investigation into the incidents of 3 July and 4 December 2012. They referred to the District Court’s decisions by which the proceedings on the application for a judicial review were discontinued as the ground for considering the matter closed.

RELEVANT LEGAL FRAMEWORK

16.  Chapter 16 of the Criminal Code covers offences against the person, including murder and manslaughter (Articles 105 to 109) and three levels of assault occasioning actual bodily harm (Articles 111 to 115). Other forms of assault which caused physical pain without resulting in actual bodily harm were treated at the material time as “battery” (побои) under Article 116.

17.  Causing bodily harm and threats of causing such harm (Article 119) are public-prosecution offences; the offences of “minor bodily harm” (Article 115) and “battery” (Article 116) are liable to private prosecution, meaning that the institution and pursuance of criminal proceedings is left to the victim, who has to collect evidence, identify the perpetrator, secure witness testimony and bring charges before a court (Article 20 § 2 of the Code of Criminal Procedure).

18.  In private-prosecution proceedings, the victim’s failure to be present at a court hearing without valid reasons leads to discontinuation of the proceedings on the grounds that the impugned conduct did not constitute an offence (Articles 249 § 3 and 24 § 1(2) of the Code of Criminal Procedure).

THE LAW

I. ALLEGED VIOLATION OF ARTICLEs 3 AND 13 OF THE CONVENTION

19.  The applicant complained that the Russian authorities had failed to afford her effective protection against the acts of domestic violence. She relied on Articles 3 and 13 of the Convention, which read, in the relevant parts, as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment ...”

Article 13

 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

A.    Admissibility

20.  The Government raised two objections as to the admissibility of the application. First, they submitted that the applicant had not exhausted the effective domestic remedies. Her applications for a judicial review of the police’s decisions had been dismissed because the supervising prosecutor had already set aside the impugned decisions, directed the police to remedy shortcomings and issue a different decision if necessary. Second, the Government claimed that the applicant had lost her status as a “victim” of alleged violation by reason of her accepting a settlement in the private‑prosecution proceedings without being required or forced to agree to that outcome. By accepting the terms of settlement, she had relinquished her complaints about all decisions by the police, the prosecutors and the courts and had had no outstanding grievances.

21.  Responding to the non-exhaustion objection, the applicant pointed out that she had challenged all decisions refusing to initiate criminal proceedings at the time when each of them was still in force. In all instances, prosecutors had quashed the police’s decision during the ongoing proceedings so as to thwart her challenge. The procedural law did not prevent her from pursuing the proceedings even after the impugned decision had been quashed. She had sought to obtain a judicial ruling on the police officers’ failure to conduct an effective investigation. However, even the “special ruling” of 1 April 2014 in which the District Court had criticised the local police officer’s failure to act had not led to effective examination of the complaints about repeated acts of domestic violence.

22.  On the victim status, the applicant noted that the settlement had extended only to two incidents of domestic violence (13 August 2011 and 20 November 2012) while the scope of the case went beyond those two incidents. Private-prosecution proceedings had been unduly prolonged and had strained her to the point that she had had to accept a settlement with P. The trial had not established the facts or pronounced P. guilty. She had not received any compensation for non-pecuniary damage.

23.  The Government’s objections of non-exhaustion of domestic remedies and the lack of victim status are so closely linked to the substance of the applicant’s complaint that the Court decides to join them to the merits.

24.  The Court also notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention.

B.     Merits

25.  The applicant submitted that she had suffered systematic physical and psychological violence over several years which had been sufficiently serious to reach the level of severity under Article 3 of the Convention. The Russian authorities had failed to provide her with the protection and to prevent further assaults by her ex-husband. Through her repeated complaints, the police officers had been made aware of ongoing assaults and of the high risk of recurring violence. They had not offered her any measures of protection due to insufficiency of Russian legislation which does not provide for measures capable of ensuring the safety of victims of domestic violence, such as restraining orders. The police had allowed P. to abuse her with impunity and taken no meaningful steps to investigate her criminal complaints and secure the evidence. They had not summoned or interviewed any witnesses, including those whom she had identified, even after the prosecutor had directed the police to do so. The police’s subsequent decisions declining institution of criminal proceedings had reproduced in substance their previous decisions which had been quashed by the prosecutor. They had not opened a criminal case even where her complaints concerned publicly-prosecutable offences, such as threats of violence (Article 119 of the Criminal Code), “tormenting” (Article 117) and a deprivation of liberty (Article 127). The applicant emphasised that a private-prosecution procedure was inadequate to fulfil the State’s obligation under Article 3 to prosecute and punish acts of domestic violence. It placed an unbearable and discriminatory burden on the victim requiring her to act as a prosecutor, to obtain evidence, to summon and question witnesses, and to prove the abuser’s guilt beyond a reasonable doubt. It also required the victim to be present at every hearing, reliving the same traumatic situation over and over. Her failure to attend would have been treated as a withdrawal of criminal charges, causing the case to be dismissed. She had attended twenty-three hearings within one year before she had accepted to settle the case which had become extremely prolonged, expensive and time-consuming. She had given birth to her second child and had lived in fear for her safety. The official statistics demonstrated that private-prosecution cases were four times more likely to be discontinued in comparison to public‑prosecution cases. The applicant also pointed to the international consensus on the issue that private prosecution in domestic violence cases was contrary to the requirements of the Convention on the Elimination of all Forms of Discrimination against Women.

26.  The Government submitted that the police had done everything that could be reasonably expected of them in the circumstances of the case. They had taken measures to establish the sequence of events and checked the applicant’s allegations against the statements of the neighbours who had not heard any threats. They had found no evidence of force being used against her. They had told the applicant to apply to a court with her allegations of death threats and battery, the offences under Articles 119 and 116 of the Criminal Code. She had instituted private-prosecution proceedings for battery only in 2014. The private-prosecution mechanism provided the required protection against acts of domestic violence because an independent and impartial authority was called upon to evaluate evidence. The applicant’s acceptance of a settlement had meant that she had endorsed the police’s decisions and had no further claims against her former spouse or police officers.

27.  The Court reiterates that the issue of domestic violence, which can take various forms - ranging from physical assault to sexual, economic, emotional or verbal abuse - is a general problem which affects, to a varying degree, all member States but does not always surface since it often takes place within personal relationships or closed circuits. The particular vulnerability of the victims of domestic violence and the need for active State involvement in their protection have been emphasised in a number of international instruments and are firmly entrenched in the Court’s case‑law (see Bevacqua and S. v. Bulgaria, no. 71127/01, §§ 64-65, 12 June 2008; Opuz v. Turkey, no. 33401/02, §§ 72-86 and 132, ECHR 2009, and Volodina v. Russia, no. 41261/17, §§ 71-72, 9 July 2019).

28.  The Court notes that the applicant suffered physical violence at the hands of her husband - and later ex-husband - P. which was recorded in medical documents (see paragraphs 5, 9 and 10 above). Her injuries, taken on their own, went beyond the threshold of severity under Article 3 of the Convention (see Volodina, cited above, § 74). In addition to physical injuries, psychological impact forms an important aspect of domestic violence. The applicant reported to the police instances of threatening conduct on the part of P. (see paragraphs 5 and 8 above). He had locked her up overnight in the flat so she could not go out or call anyone (see paragraph 7 above). His threats made her fear for her safety; she had moved flats without disclosing her new address to P. She could not however avoid seeing P. because he was the father of their son. Their meetings led to further assaults (see paragraphs 9 and 10 above). The feelings of fear, anxiety and powerlessness that the applicant must have experienced in connection with P.’s controlling and coercive behaviour were sufficiently serious as to amount to inhuman treatment within the meaning of Article 3 of the Convention (see Volodina, cited above, § 75).

29.  Once it has been established that treatment reached the threshold of severity triggering the protection of Article 3 of the Convention, the Court has to examine whether the State authorities have discharged their positive obligations under Article 1 of the Convention, read in conjunction with Article 3, to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment, including where such treatment is administered by private individuals. These positive obligations, which are interlinked, include:

(a) the obligation to establish and apply in practice an adequate legal framework affording protection against ill-treatment by private individuals;

(b)  the obligation to take the reasonable measures that might have been expected in order to avert a real and immediate risk of ill-treatment of which the authorities knew or ought to have known, and

(c) the obligation to conduct an effective investigation when an arguable claim of ill-treatment has been raised (see Volodina, cited above, §§ 76-77).

30.  On the issue whether the respondent State has established an adequate legal framework to deal with domestic violence, the Court has previously found that Russia has not enacted specific legislation to address the issue. Acts of domestic violence do not constitute a separate offence under Russian law or feature as an aggravating form of any other offence. The Russian law does not contain any penalty-enhancing provisions relating to acts of domestic violence or make a distinction between domestic violence and violence committed by strangers. The existing criminal-law provisions are not capable of adequately encompassing the various aspects of domestic violence. They leave many of its forms, such as psychological or economic abuse or controlling or coercive behaviour, outside the scope of criminal-law protection. They also require actual bodily injuries to be of a certain degree of gravity to be characterised as a publicly prosecutable offence, leaving the prosecution of lesser charges to the private initiative of the victim. The possibility to bring private prosecution proceedings is however insufficient in the context of domestic violence, as such proceedings require time and resources and put an excessive burden on the victim of domestic violence. Lengthy delays in private-prosecution proceedings and a significantly lower likelihood of securing the abuser’s conviction undermine the victims’ access to justice (see, in a factually similar situation, Barsova v. Russia [Committee], no. 20289/10, § 37, 22 October 2019, and Volodina, cited above, §§ 81-84 and 123).

31.  Russia remains among only a few member States whose national legislation does not provide victims of domestic violence with any measures of protection comparable to “restraining orders”, “protection orders” or “safety orders” that are available in the legislation of other member States. Such orders seek to forestall the 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, §§ 86-89). The respondent Government in their observations did not identify any alternative deterrent measures that the authorities could have used to prevent a recurrence of successive episodes of violence which affected the applicant.

32.  Therefore, the Court affirms its finding that the Russian legal framework falls short of the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for victims (see Volodina, cited above, § 85). The applicant would not have been able to obtain redress for her grievances relating to the lack of protection against domestic violence in any judicial proceedings. Accordingly, she has maintained her status as a victim of the alleged violation and the Government’s objection to her victim status must be rejected (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)).

33.  Turning next to the obligation to conduct an effective investigation into all acts of domestic violence capable of leading to the punishment of the perpetrator, the Court reiterates that special diligence is required in dealing with such cases, and that the specific nature of the domestic violence must be taken into account in the domestic proceedings. The State’s obligation to investigate will not be satisfied if the protection afforded by domestic law exists only in theory; above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays (see Opuz, §§ 145-51 and 168, and Volodina, § 92, both cited above).

34.  Since August 2011 the applicant has reported to the police at least four incidents of serious violence or threats of violence by P. and submitted evidence - including medical reports and names of eye-witnesses - corroborating her allegations. Her reports amounted to an arguable claim of ill-treatment, and each incident required the Russian authorities to carry out an investigation satisfying the requirements of Article 3.

35.  However, over more than two years of recurring harassment by P., the authorities never opened a criminal investigation into the use or threat of violence against the applicant. The police carried out a series of “pre‑investigation inquiries” which invariably concluded with a refusal to open a full-fledged investigation (see paragraphs 5, 8, 9, 10 and 11 above). It has been the Court’s constant position that a refusal to open a criminal investigation into credible allegations of serious ill-treatment is indicative of the State’s failure to comply with its procedural obligation under Article 3; a “pre-investigation inquiry” alone not being capable of meeting the requirements for an effective investigation under Article 3. That preliminary stage has too restricted a scope and cannot lead to the trial and punishment of the perpetrator, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges that may then be examined by a court (see Volodina, cited above, § 95, and the authorities cited therein).

36.  The Court is not convinced that the Russian authorities made a serious attempt to establish the circumstances of the assaults or took a global view of the series of violent acts which is required in domestic‑violence cases. The scope of the police inquiries was confined in most instances to hearing the perpetrator’s version of the events. They did not take statements from witnesses whose contact details the applicant had provided or carry out a medical assessment of her injuries (see paragraphs 10 and 11 above). Without citing any relevant legal authority, the police investigators raised arbitrarily the bar for evidence required to launch criminal proceedings, claiming that threats of death should be physical rather than verbal in order to be prosecutable (see paragraphs 5, 8, 9 and 11 above). The Court, however, reiterates that threats are a form of psychological violence and a vulnerable victim may experience fear regardless of the objective nature of such intimidating conduct. The authorities, for their part, must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation (see Volodina, cited above, § 98).

37.  The injuries the applicant had sustained were not deemed sufficiently serious for launching public prosecution (see paragraphs 5 and 9 above). She had to seek legal redress in private prosecution of her ex‑husband on the charge of “battery” which did not require proof of actual bodily harm or lasting damage to health. The fact that it was a private‑prosecution offence meant that the institution and pursuance of criminal proceedings was entirely left to her initiative. She did not benefit from any assistance by the State authorities in those proceedings. The police had not helped her to collect the evidence. A prosecutor had not made himself or herself available to draft legal documents on her behalf or to defend her rights in a court. The pursuance of proceedings against the abuser was entirely dependent on her efforts and determination to bring him to account. Following twenty-three hearings with the applicant required to attend each time, the judge approved a discontinuation of proceedings, without verifying that the applicant had been afforded adequate protection and sufficiently compensated for her suffering (see paragraph 14 above). Those proceedings did not establish the facts relating to the assaults on the applicant or attribute the responsibility for it. The abuser’s impunity which ensued was enough to shed doubt on the ability of the judicial machinery set in motion in this case to produce a sufficiently deterrent effect to protect women from domestic abuse.

38.  On the matter of exhaustion of domestic remedies, the Court notes that supervising prosecutors set aside some of the police’s decisions concluding the pre-investigation inquiries. They apparently found that the applicant’s allegations were sufficiently serious as to warrant additional examination of her grievances. However, the police officers did not take any additional investigative steps and issued further decisions declining to initiate criminal proceedings; the wording of those decisions reproduced in essence the text of previous decisions (see paragraphs 8, 10 and 11 above). A judicial challenge against the police’s refusal to investigate did not bring relief to the applicant. Even after a court held that the failure to eliminate the defects which the supervising prosecutors had identified had breached the applicant’s rights, the police investigators made no attempts to remedy those defects (see paragraph 13 above). As it happened, the police officers pronounced the matter closed referring to the same judicial decisions by which the courts had refused to carry out a substantive review of the adequacy of investigation on the grounds that the previous police decisions had already been set aside by prosecutors (see paragraphs 12 and 15 above). In these circumstances, the Court finds that any further judicial appeal against identical police decisions would be devoid of any practical purpose. Accordingly, it dismisses the Government’s non-exhaustion objection (compare Nechto v. Russia, no. 24893/05, § 82, 24 January 2012).

39.  In view of the deficiencies of the Russian legal framework for dealing with acts of domestic violence and the manner in which Russian authorities handled the applicant’s credible allegations of ill-treatment, the Court finds that the State has failed to discharge its obligations under Article 3 of the Convention. There has therefore been a violation of this provision. In the light of this finding, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 (see Opuz, cited above, §§ 203-05).

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3

40.  The applicant also complained of the Russian authorities’ failure to put in place specific measures to combat gender-based discrimination against women. She alleged a breach of Article 14 of the Convention, taken in conjunction with Article 3, which reads in the relevant part as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex ...”

A.    Admissibility

41.  The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

42.  The Government submitted that Article 14 did not apply in the applicant’s case because she had been unable to substantiate her allegations. She had not been a hostage of the situation. She had found a job and moved flats so as to break dependence on her former husband. She had also resorted to an effective domestic remedy in the form of private prosecution of the offender.

43.  The applicant submitted that the lack of legislation for the protection against all forms of domestic violence was discriminatory against women. The idea of domestic violence being a “private matter” was in essence institutionalised in Russia through private prosecution of such cases; and the manner in which the authorities had treated her case reflected a discriminatory attitude towards her as a woman and victim of domestic abuse. Relying on the expert reports dated 2006, 2010 and 2015 and on recommendations by UN treaty bodies to the Russian authorities, the applicant maintained that throughout the years in which experts had been pointing to rampant domestic violence in Russia, there had been no major positive developments in the protection of victims of abuse.

44.  The Court reiterates that a general policy or a de facto situation which has disproportionately prejudicial effects on a particular group may constitute discrimination within the meaning of Article 14 of the Convention, even where it does not specifically target that group and there is no discriminatory intent. Violence against women, including domestic violence, is a form of discrimination against women. The State’s failure to protect women against domestic violence breaches their right to equal protection of the law, irrespective of whether such failure is intentional or not (see Opuz, §§ 185-91, and Volodina, §§ 109-10, both cited above).

45.  In Volodina, on the strength of evidence submitted by the applicant and information from independent domestic and international sources, the Court has found prima facie indications that domestic violence disproportionately affected women in Russia. Women make up a large majority of victims of domestic offences in the police statistics, violence against women is largely under-reported and under-recorded, and women have a much lesser chance to secure prosecution and conviction of their abusers owing to domestic classification of such offences (ibid., §§ 119-24). The Court has also rejected the Government’s argument that the applicant had somehow been at fault for not submitting official statistical data on domestic violence because the failure to collect such data was attributable to the Russian authorities (ibid., § 118).

46.  The Court has held that the continued failure to adopt legislation to combat domestic violence and the absence of any form of restraining orders clearly demonstrate that the Russian authorities were reluctant to acknowledge the seriousness and extent of the problem of domestic violence in Russia and its discriminatory effect on women. By tolerating for many years a climate which was conducive to domestic violence, the Russian authorities have failed to create conditions for substantive gender equality that would enable women to live free from fear of ill-treatment or attacks on their physical integrity and to benefit from the equal protection of the law (ibid., § 132).

47.  Those findings which related, as they did, to the general situation of women prevailing in Russia at the material time are applicable in the circumstances of the present case. Since a structural bias has been shown to exist, the applicant does not need to prove that she was also a victim of individual prejudice (ibid., § 114).

48.  There has therefore been a violation of Article 14 of the Convention, taken in conjunction with Article 3.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

50.  The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage and EUR 5,250 in respect of legal costs.

51.  The Government submitted that Article 41 should be applied in accordance with the established case-law and that the claim for costs appeared excessive in the absence of information on the representative’s hourly rate or the amount of time she had spent on the case.

52.  The Court awards the applicant EUR 20,000 in respect of non‑pecuniary damage and EUR 3,000 in respect of legal costs, plus any tax that may be chargeable to the applicant.

53.  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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Joins the Government’s objections as to the applicant’s status as a victim of the alleged violation and the non-exhaustion of domestic remedies to the merits and dismisses them;

3.      Holds that there has been a violation of Article 3 of the Convention;

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;

6.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)         EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)       EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                 Alena Poláčková
Deputy Registrar                                                                       President