Information Note on the Court’s case-law 254
Volodina v. Russia (no. 2) – 40419/19
Judgment 14.9.2021 [Section III]
Respect for private life
Authorities’ failure to protect victim of domestic violence from repeated acts of cyberviolence and bring perpetrator to justice: violation
Facts – In its judgment in Volodina v. Russia the Court held that the applicant had been both physically and psychologically ill-treated by her former partner S. and that the authorities had failed to comply with their obligations under the Convention to protect her from his abuse. It concluded that the existing Russian legal framework had been deficient in several important respects and had failed to meet the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence.
In the present follow-up application, the applicant complained that the Russian authorities had failed to protect her from repeated acts of cyberviolence from S. for at least three years; this included the publication of her intimate photographs without consent, impersonation through the creation of fake social-media profiles and tracking her with the use of a GPS device. She also complained that the authorities had failed to conduct an effective investigation into these acts.
Law – Article 8: In its first judgment the Court had held that the publication of the applicant’s intimate photographs had “undermined her dignity, conveying a message of humiliation and disrespect”. In addition, this act, along with the impersonation and stalking, had interfered with her enjoyment of her private life, causing her to feel anxiety, distress and insecurity. Thus, the main question to be determined was whether the authorities, once aware of the interference with her rights, had discharged their obligations under that provision to take sufficient measures to put an end to that interference and prevent it from recurring.
(i) Whether the respondent State had put in place an adequate legal framework providing the applicant with protection against the acts of cyberviolence: It was not necessary for the Court to revisit the general finding in the first Volodina case as to the existing domestic legal framework, since the scope of its inquiry in the instant case was more limited; it had to determine whether or not the manner in which the private-life legislation had been applied in the circumstances of the applicant’s case had given rise to a violation of the Convention. In this connection, it found that the existing framework, both in civil and criminal law, in the light of the State’s margin of appreciation in choosing legal means to ensure compliance with the Convention, equipped the Russian authorities with legal tools for investigating the acts of cyberviolence of which the applicant had been the victim.
The domestic authorities had accepted that the acts in question had the requisite elements of prosecutable offences under the Criminal Code. Further, the acts had been sufficiently serious to require a criminal-law response on their part. Both the public interest and the interests of the protection of vulnerable victims from offences infringing on their physical or psychological integrity required the availability of a remedy enabling the perpetrator to be identified and brought to justice. Civil proceedings which might have been an appropriate remedy in situations of lesser gravity would not have been able to achieve these objectives in the present case.
The State authorities had a responsibility to provide adequate protection measures to the victims of domestic violence in the form of effective deterrence against serious breaches of their physical and psychological integrity. Whereas in a large majority of Council of Europe member States, victims of domestic violence might apply for immediate “restraining” or “protection” orders capable of forestalling the recurrence of domestic violence, Russia was among only a few member States whose national legislation did not provide victims of domestic violence with any comparable measures of protection. The respondent Government had not identified any effective remedies that the authorities could have used to ensure the applicant’s protection against recurrent acts of cyberviolence. The civil law mechanism did not include the rigorous monitoring of the perpetrator’s compliance with the terms of an injunction capable of ensuring the victim’s safety from the risk of recurrent abuse. Nor did an order, under criminal law, prohibiting certain conduct, offer sufficient protection to victims of domestic violence in the applicant’s situation given, inter alia, its limited nature, the conditions for its granting, the urgency required in domestic violence situations, and most significantly the fact that it was not directly accessible to the victim. Indeed, the applicant’s petition for such an order had been refused by the investigator, who had full discretion in this matter, as had her application for judicial review without an independent scrutiny of the substantive grounds of the investigator’s refusal.
In the first Volodina case the Court held that the authorities’ response to the known risk of recurrent violence on the part of S. had been manifestly inadequate and that, through their inaction and failure to take measures of deterrence, they had allowed him to continue threatening, harassing and assaulting the applicant without hindrance and with impunity. This finding was also applicable in the circumstances of the present case in which the authorities had not considered at any point in time what could and should have been done to protect the applicant from recurrent online violence.
(ii) As to the manner in which the Russian authorities had conducted an investigation into the applicant’s reports: The investigation had been opened late, that is almost two years after the applicant had first reported the fake profiles to the police. Before that, the police had sought to dispose hastily of the matter on formal grounds instead of making a serious and genuine attempt to establish the circumstances of the applicant’s malicious impersonation on social media. Since States were responsible for delays, whether attributable to the conduct of their judicial or other authorities or due to structural deficiencies in their judicial system, it was immaterial whether the initial two-year delay was caused by a lack of clear rules on jurisdiction for investigating online offences – as had been claimed by the police – or by the reluctance of individual police officers to take up the case. Nor was the Court convinced by the Government’s explanations for the delay as per S’s unavailability for questioning. In any event, the police should have acted promptly and in good faith to secure forensic evidence of the alleged offences, such as the identification of phone numbers and Internet addresses which had been used to create the fake profiles and upload the applicant’s photos. This had not been done, however, until two years later, resulting in a loss of time and undermining the authorities’ ability to secure evidence relating to the acts of cyberviolence.
Further, the investigation which was conducted from 2018 onwards had been neither expeditious nor sufficiently thorough both as regards the fake and social media profiles and the other offences the applicant had reported to the police. As per the latter, a “pre-investigation inquiry” had not led to any criminal case being opened. Without undertaking any investigative steps, the police had concluded that no offence had been committed. As the Court found in the first Volodina case, the police would arbitrarily raise the bar for evidence required to launch criminal proceedings, claiming that threats of death had to be “real and specific” in order to be prosecutable. Most importantly, the authorities had failed to take a global view of the situation by considering whether those incidents could be said to be so connected in type and context with the physical assaults the applicant had reported as to justify the conclusion that they amounted to a single course of conduct.
As a consequence of the slow-paced investigation into the fake social media profiles, the prosecution eventually became time-barred. The criminal case against S. was discontinued by application of the statute of limitations on his initiative, although his involvement in the creation of the fake profiles appeared to have been established. By failing to conduct the proceedings with the requisite diligence, the authorities bore responsibility for their failure to ensure that the perpetrator of acts of cyberviolence be brought to justice. The resulting impunity had been enough to shed doubt on the ability of the State machinery to produce a sufficiently deterrent effect to protect women from cyberviolence.
Consequently, although the existing framework equipped the authorities with legal tools to prosecute the acts of cyberviolence of which the applicant was a victim, the manner in which they had actually handled the matter – notably a reluctance to open a criminal case and a slow pace of the investigation resulting in the perpetrator’s impunity – disclosed a failure to discharge their positive obligations under Article 8 of the Convention.
Conclusion: violation (unanimously)
Article 41: EUR 7,500 in respect of non-pecuniary damage.
(See also K.U. v. Finland, 2872/02, 2 December 2008; Legal Summary; Opuz v. Turkey, 33401/02, 9 June 2009, Legal Summary; Eremia v. the Republic of Moldova, 3564/11, 28 May 2013, Legal Summary; Söderman v. Sweden [GC], 5786/08, 12 November 2013, Legal Summary; Volodina v. Russia, 41261/17, 9 July 2019, Legal Summary; Buturugă v. Romania, 56867/15, 11 February 2020, Legal Summary)