Last Updated on March 22, 2022 by LawEuro
Information Note on the Court’s case-law 260
March 2022
Y and Others v. Bulgaria – 9077/18
Judgment 22.3.2022 [Section IV]
Article 2
Positive obligations
Authorities’ failure to protect life of woman murdered by her husband, despite her several complaints about domestic violence over 9 month period: violation
Article 14
Discrimination
No evidence that failure to protect life of murdered woman was due to gender-based discrimination in general or in specific case circumstances: no violation
Facts – The applicants are relatives of a woman (Mrs V.) who was fatally shot by her husband (Mr V.). In the months preceding the murder, Mrs V. complained to the authorities of threatening conduct by Mr V. on several occasions, including through a call to the national emergency number and written complaint to the police the day before her death (17 August 2017), and by a final written complaint to the district prosecutor’s office on the day of the incident.
Law – Article 2 (substantive aspect): The applicants complained that the authorities had not effectively protected Mrs V.’s life. The authorities’ response had to be assessed as from the point when Mrs V. had first contacted them about the matter, approximately nine months preceding her death.
(a) Whether the authorities responded immediately: The authorities had only responded immediately on one occasion, by dispatching a patrol after Mrs V.’s mother had called them in relation to an argument between Mr and Mrs V.
It was true that the authorities had reacted quite quickly to Mrs V.’s complaint about her tyres being slashed. However, they had only noted her allegations and directed her to make a written complaint. After she had done so, they had only sought to obtain further evidence more than a month later, through writing a letter to their colleagues in another area and noting the response. That was the only step they had taken throughout the entire two months during which they had been handling the case.
It was also true that the domestic court had issued an interim protection order one day after Mrs V. had brought protection-order proceedings against Mr V. and that a final protection order had followed in due course. However, it had taken numerous days for the court to send copies of the interim protection order and for them to arrive in the respective police departments. More importantly, the police department competent to enforce the order had simply put it on file and taken no steps to ensuring that Mr V. would comply with it. The final protection order had apparently not even been brought to the attention of the police.
It had taken the police nine days to interview Mr V. in relation to allegations that he had chased and threatened Mrs V. and to caution him in that regard. The emergency call made on the day before Mrs V.’s death had not been relayed to the police or acted upon at all and Mrs V.’s third and final written complaints before her death had not been acted upon immediately either.
(b) Quality of the risk assessment carried out on each occasion: There was nothing to suggest that on any of the occasions in question the Sofia police had attempted to analyse Mr V.’s conduct through the prism of what it could portend about his future course of action. They had not carried out even basic documenting showing that they had conducted such a risk assessment. Nor had they informed Mrs V. of the outcome of any such assessment.
Even assuming, however, that some sort of risk assessment had taken place, albeit informally, on each or at least some of the relevant occasions, that assessment had not been autonomous, proactive or comprehensive, as those requirements had been explained in Kurt v. Austria [GC]. Perhaps most importantly, the ensuing internal investigation had found no contemporaneous evidence that, following Mrs V.’s complaint in which she had mentioned that Mr V. had a handgun, the police had checked whether he or any companies associated with him had been granted any firearms licences. Nor had they taken any other steps to check whether he had had a handgun, or taken any steps in that respect when they had received the interim protection order against Mr V., despite domestic operational guidance to that effect.
None of those omissions had been remedied by the prosecuting authorities. They appeared to have taken their two successive decisions not to open criminal proceedings against Mr V. solely on the basis of the written reports by the police. Moreover, although the two decisions had been taken by the same office a few days apart from each other, there did not appear to be any attempt to coordinate the work of the prosecutors in charge of each case. In particular, there did not appear to have been an attempt to analyse whether the relatively rapid succession of incidents involving threatening behaviour by Mr V. towards Mrs V. had suggested that she might be at risk from his future conduct.
Regarding the emergency call a day before Mrs V.’s death, it was unclear why the call handler who had taken it had assumed that no immediate response had been necessary.
(c) Whether the authorities knew or ought to have known that there was a real and immediate risk to the life of Mrs V: Had the authorities carried out a proper risk assessment, in particular on 17 August 2017, they likely would have appreciated, based on the information available to them at the time, that Mr V. could pose a real and immediate risk to the life of Mrs V., as those notions were to be understood in the context of domestic violence.
The domestic court had found Mrs V.’s allegations about one incident sufficiently credible to issue an interim protection order in her favour the day after she had brought protection-order proceedings. It was significant that under Bulgarian law, such an order might only be issued if indications existed of a direct and immediate risk to the victim’s life or health. Perhaps more importantly, on 17 August 2017, Mrs V. had credibly complained, by way both of a call to the national emergency number and of a written complaint, that Mr V. had breached the terms of the final protection order in her favour.
The authorities thus ought to have appreciated the reality and immediacy of the risk to her life. The fact that they had not appeared to have been, at least in part, due to the lack of specific training of the relevant officers. Those who had taken charge of Mrs V.’s complaints had apparently not been specifically trained on the dynamics of domestic violence, as required under the Court’s case-law.
(d) Whether the authorities took preventive measures which were adequate in the circumstances: The only operational measures taken to protect Mrs V. had been the interim and final protection orders issued in her favour, which had then remained without any tangible effect.
The Bulgarian authorities could, consistently with the powers they had, have taken various steps, including through seizing the handgun and charging Mr V. for unlawful possession of a firearm; arresting and charging Mr V. for breaching the terms of the protection order against him; or placing Mrs V. under some form of police protection, especially in the light of her final complaints. The ensuing internal investigation had recommended that disciplinary action be taken against a number of officers for their failure to work diligently on Mrs V.’s case. The authorities had failed to taky any measures at their disposal which, judged reasonably, they might have been expected to avoid the risk posed by Mr V. to Mrs V.’s life. Nor had the authorities sought to somehow coordinate their actions in that respect.
Conclusion: violation (unanimously).
Article 14 read in conjunction with Article 2: The applicants had also complained that the failure of the authorities to take sufficient measures to protect Mrs V.’s life had not been an isolated occurrence, but had been due to her being a woman and to the authorities’ general complacency towards violence against women.
The Court first examined whether there was prima facie evidence that domestic violence affected mainly women, and that the general attitude of the authorities had created a climate conducive towards such violence, which would shift the burden of proof onto the respondent State to show what remedial measures it had taken to redress the disadvantage associated with sex.
As in all member States of the Council of Europe, domestic violence in Bulgaria predominantly affected women. However, no evidence had been presented to suggest that the domestic authorities sought to dissuade women who fell victim to such violence from complaining about it, or that the courts systematically delayed the issue of protection orders. The authorities did not collect and keep comprehensive statistics about the manner in which the law-enforcement authorities handled domestic-violence cases, which was a serous omission. The applicants had attempted to back their assertion with statistical data, but the statistics which they had presented were not in themselves sufficient to corroborate their assertion. Incomplete statistics could not serve as a proper basis for the sweeping conclusion contended for. Nor was the Court persuaded that the other kinds of evidence – namely, three international reports – to which the applicants had pointed had been sufficient to substantiate their assertion that the authorities had remained generally complacent in such cases.
It also could not be said that at the relevant time Bulgarian law had wholly failed to address the problem of domestic violence, or that, overall, it had placed undue obstacles in the way of women who had wished to complain of such violence. In the present case, the law had given the authorities sufficient tools to take measures to protect Mrs V.
As for the non-ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”), the Court was mindful of that Convention’s importance for raising the standard in the field of protection of women from domestic violence and thus also for the realisation of de jure and de facto equality between men and women. Bulgaria’s refusal to ratify the Istanbul Convention could thus be seen as lack of sufficient regard for the need to provide women with effective protection against domestic violence. However, the Court was not prepared in the present case to draw conclusions from Bulgaria’s refusal to ratify that Convention in 2018. The refusal had taken place months after Mrs V.’s killing and had been based on considerations unrelated to a reluctance to provide women with proper legal protection against domestic violence. It was in any event not for the Court to pronounce, directly or indirectly, on whether a Contracting State should ratify an international treaty, which was an eminently political decision.
In the light of the foregoing, the Court was not persuaded that the applicants had succeeded in making a prima facie case of a general and discriminatory passivity on the part of the domestic authorities with respect to domestic violence directed against women. The Court therefore had to examine whether there was any proof of anti-female bias by the officials dealing specifically with Mrs V.’s case.
The passivity of the Sofia police, although reprehensible and in breach of Article 2, could not in itself be seen as disclosing a discriminatory attitude on the part of the authorities. The police had carried out an internal investigation after Mrs V.’s death and that disciplinary action had then been taken against officers found to have neglected their duties in her case. That fact tended to suggest that the authorities had not looked upon the matter with indifference – although fuller information about the punishments imposed on the relevant police officers would have shed more light on that point.
Nor could it be said that the judicial response to Mrs V.’s killing had demonstrated a lenient attitude towards domestic violence. It was true that no charges had been brought against Mr V. with respect to his having breached the terms of the protection order in Mrs V.’s favour. However, he had been tried for aggravated murder and the unlawful possession of a firearm, the courts had dealt with the case against him quite quickly, and had given him an effective prison sentence of thirteen years and four months, which could hardly be seen as unduly lenient. They had also taken his conduct towards Mrs V. during the course of the months before her killing as an aggravating factor.
The above considerations, taken as a whole, led to the conclusion that in the circumstances of the present case there had been no breach.
Conclusion: no violation (unanimously).
Article 41: EUR 24,000 jointly in respect of non-pecuniary damage.
(See also Opuz v. Turkey, 33401/02, 9 June 2009, Legal Summary; Volodina v. Russia, 41261/17, 9 July 2019, Legal Summary; Kurt v. Austria [GC], 62903/15, 15 June 2021, Legal Summary)
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