Last Updated on November 22, 2019 by LawEuro
Communicated on 17 September 2019
THIRD SECTION
Application no. 40419/19
Valeriya Igorevna VOLODINA
against Russia
lodged on 19 July 2019
STATEMENT OF FACTS
1. The applicant, Ms Valeriya Igorevna Volodina[1], is a Russian national, who was born in 1985 and lives in Ulyanovsk. She is represented before the Court by Ms V. Kogan and Mr E. Wesselink of the Stichting Justice Initiative, a human-rights organisation based in Utrecht, the Netherlands.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In November 2014 the applicant began a relationship with Mr S., an Azerbaijani national. Following their separation in 2015, Mr S. became abusive. He had threatened her with death or bodily injuries, abducted and assaulted her on several occasions. For a detailed description of those events, see Volodina v. Russia, no. 41261/17, §§ 10-36, 9 July 2019.
4. In June 2016, the applicant’s brother told her that her account on the Russian social network VKontakte had been hijacked. An invented name had been replaced with her real name, personal details, a photograph of her passport and her nude photographs had been posted. Her twelve-year-old son’s classmates and his form mistress had been added as friends. The applicant attempted to log into her account only to discover that the password had been changed.
5. On 22 June 2016 the applicant complained to the Ulyanovsk police about a breach of her right to privacy. The police took a statement from the applicant’s brother. He said that he had talked to S. on the phone and that S. had admitted to breaking into the applicant’s mailbox and sending profanities to her contacts. He had done it out of desperation because he had not had “a good way to bring [her] back”. Claiming that they were unable to locate S. in their jurisdiction, on 21 July 2016 the Ulyanovsk police forwarded the matter to the police in the Krasnodar Region where S. had a registered place of residence. On 29 August 2016 the Krasnodar police sent the file on to the Samara Region where S. had moved. On 30 September 2016 the Samara police returned the case back to their colleagues in Ulyanovsk.
6. On 7 November 2016 the Ulyanovsk police declined to institute criminal proceedings on the grounds that the information had been disclosed on a social network rather than in mass-media. A supervising prosecutor set that decision aside as unlawful because S. had not been interviewed. On 2 May 2017 the police again declined to open a criminal case, finding no indication that S. had collected or disseminated information about the applicant’s private life. The decision stated that it had been impossible to locate S. who did not have Russian nationality or place of residence in Russia. On 1 February 2018 the supervising prosecutor annulled that decision. He directed the police to find and interview S., to examine his electronic devices and records of his phone calls to the applicant.
7. On 6 March 2018 the Ulyanovsk police opened a criminal investigation under Article 137 of the Criminal Code. Over the following months, police investigators interviewed the applicant and S., first separately and later face-to-face, took statements from the applicant’s family members, seized and examined the mobile phones and obtained logs of phone communications from mobile providers, received information from the company operating the VKontakte site, and talked to an expert in social media.
8. In February, March and September 2018, new fake accounts under the applicant’s name appeared on VKontakte and Instagram. They used her photographs and personal details.
9. On 13 August and 19 September 2018 the applicant complained to the Ulyanovsk police that S. had sent her death threats through social media and messengers. She enclosed printouts of messages and asked the police to open a criminal case under Article 119 of the Criminal Code (threats of death or bodily injury) and to grant her protection. On 3 January 2019 the police refused to open a criminal case on the grounds that the threats had not been “real”.
10. Following the introduction of court orders prohibiting certain forms of conduct (see paragraph 16 below), on 28 September 2018 the applicant asked the investigator to seek an order which would prevent S. from using the internet, contracting her by any means including through social media, e-mail or phone messengers, or approaching her or members of her family. On 18 October 2018 the investigator replied that, on account of his independent standing in the proceedings, the parties could not dictate him what action needed to be taken. He refused her request on the grounds that “measures of restraint could be applied to suspects in exceptional cases only”. By judgment of 27 November 2018, as upheld on appeal on 21 January 2019, the Ulyanovsk courts dismissed the applicant’s complaint about the investigator’s decision. They declined to review the substantive grounds for the decision, restricting their scrutiny to the finding that it had been issued by a competent official within his scope of discretion.
11. On 12 December 2018 the applicant complained to the Kuntsevskiy District Court in Moscow that the Kuntsevskiy district police had not responded in any way to her report of a tracking device she had found in her bag two years previously (see Volodina, cited above, §§ 28-29). On 26 December 2018 the District Court found no fault with the actions of the district police because the deputy chief had forwarded the applicant’s report to the Special Technical Measures Bureau shortly upon its receipt. On 28 February 2019 the Moscow City Court dismissed, in a summary fashion, her appeal against the District Court’s determination.
12. On 19 January 2019 the Ulyanovsk police suspended the investigation into the fake social media accounts. They established that two fake accounts had been created in February and March 2018 using an internet address (IP address) and a phone number registered in Azerbaijan. According to the billing information of his phones and the police database, on critical dates S. had been in the Tambov Region in Russia. The investigators decided to ask their Azerbaijani counterparts to obtain records of phone communications from that number.
13. Counsel for the applicant applied for a judicial review of the investigators’ decisions. She complained that the criminal case had been opened following a two-year period of inactivity after the first report, that her fake accounts created in 2016 had not been investigated, that S.’s friends and connections had not been identified or interviewed, that communications between S. and the phone number in Azerbaijan had not been assessed, and that the collected evidence had not been made available to the applicant.
14. On 25 June 2019 the Zavolzhskiy District Court in Ulyanovsk set aside the 19 January 2019 suspension decision as unlawful and premature in so far as it did not fix a time-limit for receiving a reply from Azerbaijan and as it prevented the applicant from requesting the investigator to follow the leads which she believed needed to be explored. On 19 August 2019 the Ulyanovsk Regional Court quashed the District Court’s decision in the part in which the applicant’s complaints had been granted. It held that the law did not require the investigator to make the case file available to the applicant until the investigation had been completed, and that the suspension decision had been lawful because “the investigator had assessed and taken due account of all circumstances” underlying that decision.
RELEVANT DOMESTIC LAW
15. Pursuant to Article 137 of the Criminal Code, illegally collecting or disseminating information about someone’s private life, personal or family secrets, without that person’s consent, or disclosing such information in a public speech, a publicly shown work of art or in mass-media, is an offence punishable with a fine or up to two years’ imprisonment.
16. In April 2018, a new measure of restraint in criminal proceedings in the form of a court order prohibiting certain conduct (запретопределенныхдействий)was introduced in Article 105.1 of the Code of Criminal Procedure. The court may issue an order requiring the suspect or defendant in criminal proceedings to appear when summoned, to abstain from certain conduct and to comply with imposed restrictions (part 1). The exhaustive list of forms of conduct which may be restricted includes a prohibition on leaving the place of residence, a prohibition on visiting or approaching specific places or attending specific events, a ban on communication with specific people, and a ban on receiving or sending letters, using means of communication or the internet (part 6).
RELEVANT international DOCUMENTS
17. Report by the UN Human Rights Council’s Special Rapporteur on violence against women, its causes and consequences, on online violence against women and girls from a human rights perspective (A/HRC/38/47, 18 June 2018) has observed that online and internet-facilitated forms of violence against women have become increasingly common, particularly with the use of social media platforms and other technical applications (point 12). Technology has transformed many forms of gender-based violence into something that can be perpetrated across distance, without physical contact and beyond borders. All forms of online gender-based violence are used to control and attack women and to maintain and reinforce patriarchal norms, roles and structures and an unequal power relationship (point 30). Online violence against women may be manifested in different forms and through different means, such as non-consensual accessing, using, manipulating, disseminating or sharing of private data, photographs or videos, including sexualized images (point 34). New among other forms of violence, “revenge porn” consists in the non-consensual online dissemination of intimate images, obtained with or without consent, with the purpose of shaming, stigmatising or harming the victim (points 33 and 41). The Special Rapporteur formulated a number of recommendations for States, including the recommendations that States should clearly prohibit and criminalise online violence against women, in particular the non-consensual distribution of intimate images and the threat to disseminate such images (point 101), and that States should allow victims to obtain protection orders to prevent their abusers from posting or sharing intimate images without their consent (point 104).
COMPLAINT
18. The applicant complains under Article 8 of the Convention that the Russian authorities failed to protect her against repeated acts of online violence, to prohibit S. from contacting her or republishing her photographs, or to carry out a prompt and efficient investigation into the matter.
QUESTION TO THE PARTIES
Did the Russian authorities discharge their obligation under Article 8 of the Convention to provide the applicant with the practical and effective protection against online harassment including by taking steps to prevent further dissemination of her intimate photographs and carrying out an effective investigation into fake social-media accounts capable of leading to the identification and prosecution of the perpetrator (compare K.U. v. Finland, no. 2872/02, § 49, ECHR 2008)?
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[1]. Note by the Registry. The applicant obtained a legal change of her name. Her old name is used in the statement of facts to preserve her confidentiality.
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