Last Updated on February 9, 2021 by LawEuro
Communicated on 22 January 2021
Published on 8 February 2021
THIRD SECTION
Application no. 3713/21
Gulli Nadirovna KAZANBIYEVA
against Russia
lodged on 15 January 2021
STATEMENT OF FACTS
1. The applicant, Ms Gulli Nadirovna Kazanbiyeva, is a Russian national, who was born in 1994 and lives in Makhachkala, Dagestan. She is represented before the Court by Ms T. Imanova, a lawyer practising in Moscow.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In 2014, the applicant married Mr K. in a Muslim wedding performed by an imam in Khasavyurt, Dagestan. Their marriage has never been registered with the State authorities.
4. Soon after getting married, the applicant found out that K. had a second wife, whom he married long before and with whom he had a son; she decided to leave him. When she told him about her decision, he threatened her that he would not let her live without him and hit her for a first time. At the time of the assault, the applicant was seven months pregnant with his son. Their son was born in 2015; the applicant also had a daughter from a previous marriage who lived with them.
5. In April 2015 K. attacked the applicant again, dragging her up a set of stairs into his first wife’s house, while beating her with his fists to her head, face and body. After K. left, the applicant took her child and fled to her cousin Makhachkala. The applicant did not report the attack, fearing for her life and believing that K.’s friends in the police force would shield him from criminal prosecution as he claimed they would.
6. In June 2015 K. persuaded the applicant to meet to discuss their son’s future. When she arrived, he took her to his first wife’s house, hit her and dragged her inside. As soon as she entered, K. began striking her with a stick, focusing on her legs and repeating, “Did you run away from me on these feet?”. This went on for at least six hours, from midnight until 6 a.m. Afterwards the applicant managed to flee to her brother’s wife’s house and told her about the assault. The relatives tried to persuade her to go to the police, but she refused as she was too afraid to enrage K.
7. During the period of 2015 to 2018 K. frequently assaulted the applicant: the attacks included beating, kicking, choking and knife threats. Twice in 2017, the applicant’s mother witnessed K. breaking the applicant’s nose: the first time occurred when she told him she wanted to leave him; the second time occurred while the applicant was living with her parents and K. tried to take their son away from her. The applicant tried to leave K. several times. Each time she fled to her parents’ house but later returned to K. either out of fear, or after he apologized and promised to stop acting aggressively. In 2018 K. threw a rock into the window of her parents’ house where the applicant was sheltering and started pouring petrol over the house, threatening to set the house on fire and saying, “if you don’t come out, you’re going to burn alive”. A police officer arrived on the scene but he did not draw up a report or detain K.; he refused to provide any documentation of that incident to the applicant.
8. Since February 2019 the applicant had been seeking to have their religious marriage dissolved. The divorce was pronounced on 20 July 2019 by an imam outside Makhachkala, via a video call, because K. had been threatening imams in Makhachkala with revenge if they agreed to a divorce.
9. On 13 September 2019 K. came to the applicant’s parents’ house where she was living with their son. Earlier on that day he had sent her multiple threatening text messages until she blocked the number. She saw K. breaking into the house through a window and ran to the bathroom. K. broke the lock on the bathroom’s door and hit the applicant in her left eye with his fist; he grabbed her by the hair and dragged her to the bedroom. He started beating her, pulled out a knife and pressed the blade against her cheek, threatening her that he would painfully kill her and cut up her body.
10. After that, K. jumped onto the applicant’s left arm and fractured it. He grabbed her right hand by the wrist and said words to the effect of “are you blocking my phone number with these fingers”. The applicant remained silent, so he took out a knife and said, “Now I will cut these fingers.” He began to cut her little finger with a knife and then beat her hand with the handle of the knife. K. lifted the applicant up by the neck, pressed her against the wall and ran the knife blade along her body. The applicant was crying and asking to be kept alive. He also beat her in the jaw with his fists, later confirmed to have broken her jaw. At some point the applicant managed to break free, ran out of the house, screamed and fainted. Her screams attracted the attention of the neighbours; they came running, found the applicant unconscious and called an ambulance.
11. As a result of the assault, the applicant was admitted to an intensive care unit at the Makhachkala hospital where she stayed until 24 September 2019. She was treated for fractures of the left forearm and her lower jaw, bruised forehead wounds, contusions to her face and her rib cage, traumatic brain injury and brain concussion.
12. On 26 October 2019 the police initiated criminal proceedings against K. for intentionally inflicting bodily harm of medium gravity, an offence under Article 112 of Criminal Code. On 20 November and 9 December 2019 the investigations committee additionally charged him with forcible breaking into a private residence under Article 139(2) of the Criminal Code and threating the applicant with murder under Article 119 of the Criminal Code.
13. On 20 November 2019 the Kumtorkalinskiy District Court placed K. in pre-trial detention for one month on the grounds that he could flee or interfere with the investigation. On 17 December 2019 the District Court varied the preventive measure to house arrest on the grounds that K. had been charged with the commission of an offence of medium gravity and the risks of absconding and interference had not been shown to exist. The court committed K. to his place of residence and prohibited him from sending and receiving postal and online communications. The applicant attended that court hearing. During this hearing K. told her that he would kill her and finish what he started. On 6 January 2020 the court prolonged the restricting not to leave his place of residence and added an additional condition, prohibiting K. from contacting the applicant or any other party to the case.
14. On 7 February 2020 the applicant asked the investigator to conduct a new medical assessment of her injuries because a permanent disfigurement of her face amounted to serious bodily injury and affected the legal characterisation of K.’s acts. She also asked to have her account of prior abuse joined to the file, accept her standing as civil claimant and open a new investigation against K. for systematically hurting her which constituted the offence of “tormenting” under Article 117 of the Criminal Code. On 11 February 2020 the investigator denied all her requests. He held that, as the medical assessment had already carried out, there was not need to draw out the investigation to produce duplicate evidence or give a different characterisation to K.’s conduct.
15. After the applicant complained to a supervising prosecutor, on 2 April 2020 the Kumtorkalinskiy district prosecutor informed her that they ordered the investigation to conduct a new medical assessment of her injuries since the case-file showed the existence of traumas which could have been classified as serious bodily harm. The applicant has not been informed of any progress regarding that order.
16. On 13 March 2020 the applicant resubmitted her request to prosecute K. on the charge of systematically “tormenting” her. On 28 April 2020 the investigator rejected the request on the grounds that that K. denied the applicant’s testimony. On 11 June 2020 the supervising prosecutor set aside that decision; on 17 July 2020 the investigator again refused to investigate the matter. On 23 July 2020 this decision was again quashed by the supervising prosecutor but the criminal investigation has not been opened.
17. On 18 August 2020 the applicant lodged an application for State protection measures. On 3 September 2020 she was visited by some men claiming to be from the Dagestan Ministry of the Interior who offered her a number of options for protection measures, such as sending two officers to live with her in her house or renting an apartment for her and her children to live with the officers. The applicant declined the first option because there was no free room in the house and told them that she would consider the second option together with her attorney. The officers proposed a further meeting with the applicant and her representative but left no contact details. As the applicant found out during the court hearing on 19 October 2020, on 9 September 2020 the Ministry of the Interior refused her application for State protection because they did not find any risks to her life, health or well-being.
18. On 27 October 2020 a justice of the peace in Makhachkala found K. guilty of making death threats and causing medium-gravity bodily harm to the applicant and unlawfully penetrating into her home and sentenced him to one year and one month’s imprisonment in an open minimum-security facility. The court took into account, in mitigation, that the crimes committed were of minor gravity and that K. had two dependent children (the applicant’s son and a son from his first wife), positive character references, no alcohol or drug addiction and no criminal record. The court found no aggravating circumstances. On 22 January 2021 the conviction became final.
COMPLAINTS
19. The applicant complains under Article 2 of the Convention, taken alone and together with Article 13, that the repeated violence by K. and his repeated threats to kill her have presented a risk to her life, of which the Russian authorities have been aware but failed to take any protection measures.
20. The applicant complains under Article 3 of the Convention, taken alone and together with Articles 13 and 14, that the Russian authorities failed to establish a legal framework capable of protecting her against recurrent acts of violence, conduct an effective investigation into the ill‑treatment inflicted by K. and mete out an appropriate punishment, and tackle the problem of domestic violence which disproportionately affects women in Russia.
QUESTIONS TO THE PARTIES
1. Have the Russian authorities complied with their positive obligation under Article 2 to ensure that the life of the applicant is protected against any attempts by K. to act upon his threats to kill her? Did they take preventive operational measures based on a comprehensive assessment of the risks involved, taking into account the specific context of domestic violence and the recurrence of successive episodes of violence and threats of death (see Talpis v. Italy, no. 41237/14, §§ 122-23, 2 March 2017)?
2. As regards the alleged violations of Articles 3 and 13 of the Convention in connection with the ill-treatment of the applicant by K., did the Russian authorities discharge their obligation to protect her against the violence? In particular,
(a) Did the Russian State discharge the obligation to establish and apply effectively a legislative framework for punishing all forms of domestic violence and providing sufficient safeguards for victims?
(b) Did the Russian authorities discharge the obligation to take the reasonable measures that might have been expected of them in the circumstances in order to avert further risk of ill-treatment after the applicant had reported the initial assault? Did they process the applicant’s request for State protection measures within the statutory time-limit and was their decision to refuse protection measures based on a thorough assessment of risks involved?
(c) Did the Russian authorities discharge the obligation to conduct an effective investigation into all instances of ill-treatment which had been reported to them and to bring the perpetrator to account?Did they carry out a full and comprehensive assessment of the applicant’s injuries with a view to establishing a correct legal characterisation of the perpetrator’s conduct? Did the domestic courts have regard to relevant aggravating factors, such as a history of abuse and violence, in determining the appropriate length of the sentence? Was the sentence sufficiently dissuasive to achieve the deterrent effect?
3. As regards the alleged violation of Article 14 of the Convention, taken in conjunction with Article 3, did the Russian authorities acknowledge the gravity and extent of the problem of domestic violence and its discriminatory effect on women? Did they implement measures for achieving 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?
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