Last Updated on February 10, 2022 by LawEuro
Information Note on the Court’s case-law 259
February 2022
Judgment 10.2.2022 [Section V]
Article 2
Positive obligations
Article 2-1
Effective investigation
Failure to prevent gender-based violence by a police officer and to investigate the law-enforcement authorities’ passive response: violations
Article 14
Discrimination
Failure to prevent gender-based violence by a police officer and to investigate the law-enforcement authorities’ passive response: violations
Facts – The applicants are the mother and son of C, who was murdered by her partner (D), a police officer at the relevant time. Over the course of several years, C and her family reported numerous incidents of domestic abuse carried out by D. D was convicted of the murder. The first applicant, acting on behalf of herself and the second applicant, complained to relevant law-enforcement authorities of the failures of relevant police officers and public prosecutors to protect C’s life and to give proper consideration to the repeated reports of domestic violence. In civil proceedings, the applicants were awarded approximately EUR 7,000 in compensation for non-pecuniary damage.
Law – Article 2 taken in conjunction with Article 14:
(a) Procedural aspect
The competent authority had not made an attempt to establish responsibility on the part of the officers for their failure to respond properly to the multiple incidents of gender-based violence occurring prior to C’s murder. Nor had they deemed it necessary to grant the applicants victim status. No disciplinary inquiry into the police’s alleged inaction had even been opened, and no steps had been taken to train the police officers in question on how to respond properly to allegations of domestic violence in the future. The applicants had received no response whatsoever as regards their complaint calling into question the inaction of the public prosecutor.
In the light of the relevant circumstances of the case, in particular the existence of indices pointing to possible gender based discrimination as at least partly informing the response of law enforcement to the complainant and the complaints, and the fact that they had permitted the alleged perpetrator to participate in the questioning of the complainant and victim of the alleged domestic abuse, there had been a pressing need to conduct a meaningful investigation into the response of law enforcement. The fact that the alleged perpetrator had been a member of law enforcement himself, and that the threats he had used against the victim and her family had referred to that fact and what he considered to be his impunity, had rendered the need for a proper investigation all the more pressing.
The above considerations were sufficient to conclude that there had been a breach of the State’s procedural obligations. However, the Court also noted the insufficiency of the redress offered by the two other sets of domestic proceedings. The criminal prosecution of the perpetrator had not involved any examination of the possible role of gender-based discrimination in the commission of the crime. As regards the civil proceedings brought by the applicants against the law-enforcement authorities, the domestic courts had not expanded their scrutiny to the question of whether the official tolerance of incidents of domestic violence might have been conditioned by the same gender bias. Nor had they addressed the question of whether there had been indications of the relevant law-enforcement officers’ acquiescence or connivance in the gender-motivated abuses perpetrated by their colleague. Those gaps did not sit well with the respondent State’s heightened duty to tackle prejudice-motivated crimes.
In the particular circumstances of the case, and having regard to the nature and quantum of the pecuniary award, the applicants had maintained their victim status and there had been a breach by the respondent State of its procedural obligations.
Conclusion: violation (unanimously).
(b) Substantive aspect
There had been a lasting situation of domestic violence, which meant that there could be no doubt about the immediacy of the danger to the victim, and that the police had known or ought to have known of the nature of that situation. However, the police had failed to display the requisite special diligence and had committed major failings in their work such as inaccurate, incomplete or even misleading evidence gathering and not attempting to conduct a proper analysis of what the potential trigger factors for the violence could be.
Further, while the domestic legislative framework provided for various temporary restrictive measures in respect of alleged abusers, the relevant domestic authorities had not resorted to them at all.
The inactivity of the domestic law-enforcement authorities was even more concerning when assessed against the fact that the abuser had himself been a police officer. What is more, the law-enforcement authorities had been aware that he had been using various attributes of his official position to commit the abuse. They had not only failed to put an end to such, but had allowed him to participate in the questioning of the victim and had soon after promoted him to a higher police rank. Member States were expected to be all the more stringent when investigating and, where appropriate, punishing their own law-enforcement officers for the commission of serious crimes. This was because what was at stake was not only individual criminal-law liability of the perpetrators, but also the State’s duty to combat any sense of impunity felt by the offenders by virtue of their office, and to maintain public confidence in and respect for the law-enforcement system.
Overall, the case could be seen as yet another vivid example of how general and discriminatory passivity of the law-enforcement authorities in the face of allegations of domestic violence could create a climate conducive to a further proliferation of violence committed against victims, merely because they were women. Despite the various protective measures available, the authorities had not prevented gender-based violence against the applicants’ next-of-kin, which had culminated in her death, and they had compounded that failure with an attitude of passivity, even accommodation, as regards the alleged perpetrator, later convicted of the victim’s murder.
Conclusion : violation (unanimously).
Article 41: EUR 35,000 jointly in respect of non-pecuniary damage.
(See also Tkhelidze v. Georgia. 33056/17, 8 July 2021, Legal Summary)
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