1.The authors are X. and Y., Russian citizens born in 1979 and 1975, respectively. They claim to be victims of violations by the Russian Federation of their rights under article 1 of the Convention, taking into consideration the Committee’s general recommendation No. 19 (1992) on violence against women, general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of the Convention and general recommendation No. 33 (2015) on women’s access to justice; article 2 (b) to (f) of the Convention; and article 5 (a), read in conjunction with articles 1 and 3, of the Convention and taking into consideration the Committee’s general recommendations No. 19, No. 28 and No. 33. The Convention and the Optional Protocol thereto entered into force for the Russian Federation on 3 September 1981 and 28 October 2004, respectively. The authors are represented by counsel, Valentina Frolova and Mary Davtyan.
Facts as submitted by the authors
2.1X. was married to K. from 2009 to 2013. From 2010 to 2013, her husband subjected her to systematic physical and psychological abuse: beatings, death threats, severe injuries, frequent arguments, insults and humiliation. She did not report the abusive treatment to the police or medical organizations as she was afraid of inciting further violence.
2.2X. has two daughters, born in 2002 and 2012, who witnessed the abuses. She gave up her employment following the birth of her second daughter, who had immune neutropenia and needed constant care.
2.3Around 8 November 2010, K. punched X. in the face when they were in a car in Saint Petersburg, in the presence of their elder daughter, resulting in an injury to her nose. She sought medical assistance within 24 hours. She did not report the beating, however, as she was accompanied by her husband.
2.4In December 2010, K. beat X. at their home. He pushed her and she fell on a couch; he then threw a blanket over her and punched her more than 20 times. She sustained blows to her body and head. She sought medical assistance and reported the beating. The doctor documented contusions to the chest, the right gluteal region and the upper third of the left hip and reported the incident to the police.
2.5The author’s elder daughter lived in constant fear of her father’s aggressive behaviour and requested to be sent to stay with her grandmother in Irkutsk. The author acquiesced to her request in January 2011.
2.6In 2012, X. decided to leave her husband. She subsequently changed her mind, however, when she learned that she was pregnant. The physical and psychological abuse continued. In October 2012, she gave birth to her second daughter.
2.7X. was scared for her safety and the safety of her baby. In February 2013, she ended the relationship with her husband and moved to another apartment with her baby. K, however, continued to harass her under the pretext of visiting the baby. He called regularly, argued with her and continued to make threats and insult her. Every meeting with her husband resulted in physical and psychological abuse.
2.8On 2 April 2013, X. was at a paediatric medical centre with her baby. K. entered the centre and began shouting and swearing at the author. He insulted her and hit her in the face at least three times. The medical staff called security and took the author and her baby to a safe place. The author reported the incident to the police the same day. A record that she had sustained a bruise in the occipital area was made.
2.9X. was scared and applied for assistance from a State-financed social aid centre for families and children in Krasnogvardeisky District in Saint Petersburg. On 7 May 2013, she was placed in a State-run shelter in Saint Petersburg, but K. continued to harass her regardless.
2.10On 3 June 2013, K. punched X. in the jaw, when she was at a tram stop. K.’s mother was present. The author sought medical assistance. A record of the soft tissue bruise in the chin area was drawn up and transmitted to the police. The police recorded the incident on 5 June 2013.
2.11During the subsequent year, the author tried unsuccessfully to initiate criminal proceedings against K. The violence that she was being subjected to continued.
2.12X. explains that she filed a complaint regarding the abuse with the district branch of the office of the Ministry of Internal Affairs on 4 July 2013 and reported all the violent incidents mentioned above. She provided the contact details of 12 witnesses and indicated that she resided in a shelter out of fear. Her complaint was forwarded to police department No. 26 and registered there on 9 July 2013. On 17 July 2013, the district police refused to initiate criminal proceedings. On 19 August 2013, the refusal was quashed by a prosecutor as unlawful because of the incompleteness of the investigation, and the case was sent back for further investigation.
2.13In the course of the additional investigation, the district police were informed that K. had been convicted in 2009 for battery, death threats and verbal abuse and given a one-year suspended sentence. In 2013, the criminal investigation department of the Krasnogvardeisky District of Saint Petersburg released K, asking him not to leave the country during an investigation into an alleged theft. On 21 September, a witness, L.M., stated to the police that he had never seen the author’s husband hit her, but that he had seen bruises, and that she had told him that she had been beaten, that her husband constantly argued with her and that he insulted and beat the children, too. The police still failed to take any action, and the author requested the hospitals at which she had been treated to provide her with the relevant documentation.
2.14On 25 September, 30 October and 28 November 2013, the district police refused to initiate criminal proceedings against K. Those decisions were overturned, however, by the prosecutor’s office on 30 September, 5 November and 5 December 2013, respectively. The author was not informed of any further action taken by the police.
2.15X. submits that police department No. 13 reviewed her complaint regarding the incident of 3 June 2013. During a police interview, K. and his mother did not deny that he had hit the author in the face. On 10 June 2013, the district police refused to initiate criminal proceedings owing to the absence of a complaint by the victim. A prosecutor quashed that decision on 14 June 2014 owing to the incomplete investigations. The district police again refused to open a criminal case on 16 July and 7 October 2013; those decisions were quashed by a prosecutor on 22 July and 11 October 2013, respectively. On 14 October 2013, the author requested police department No. 13 to open a criminal case under article 20 (4) of the Criminal Procedure Code. She claimed that, given that she did not have legal training or the financial means to hire a lawyer and, as a result of the threats and violence to which she had been subjected, she lived in a shelter far from the court, her attendance in court would interfere with the care of her children, in particular the constant medical care that her younger daughter needed, and would be incompatible with her psychological rehabilitation.
2.16On an unspecified date, the district police refused to initiate a criminal case, finding no grounds to open a case under article 20 (4) of the Criminal Procedure Code, given that X. could defend her rights “on an independent basis”. A prosecutor quashed that decision on 15 December 2013. On 28 February, the district police transmitted the case materials to the justice of the peace, on the basis that no grounds for the initiation of a criminal case under article 20 (4) of the Criminal Procedure Code had been found and the author could defend her rights independently.
2.17Regarding the incident of 2 April 2013, police department No. 26 informed X. on 29 April 2013 that the case materials had been transmitted to the justice of the peace. In October 2013, the author asked department No. 26 to open a case under article 20 (4) of the Criminal Procedure Code.
2.18Y. married G. in 1994. The couple had three sons, born in 1996, 2001 and 2011.
2.19On 2 February 2006, G. threatened Y. with violence and beat her grandmother. A criminal case was initiated to investigate the incident. The case was later dismissed following the reconciliation between the author’s grandmother and husband.
2.20On 20 August 2007, G. beat Y. and threatened to kill her in front of their children. She had to seek medical assistance and was recorded as having sustained injuries that included a bruised left shoulder and pelvis. She submitted a complaint to the police department of Zyablikovo District in Moscow. The police rejected her complaint.
2.21During their marriage, G. regularly committed acts of physical and psychological violence against Y. The author regularly reported the violence to the police, to no avail. After a while, she contacted the police only in the most violent instances.
2.22During the night of 12 June 2012, G. insulted Y. and threatened her with physical harm. He then hit the author in the head several times. She sought medical assistance at Moscow city clinic No. 192. On 18 June 2012, she submitted a complaint to the Zyablikovo District police department. An initial inquiry was opened and the husband was questioned; he denied any use of violence. One of the couple’s sons confirmed his father’s statements. On that basis, on 22 June 2012, the police refused to open a criminal case. The decision not to open the case nevertheless mentioned that the acts of the husband could constitute a crime under article 116 (1) of the Criminal Code, but were subject to private prosecution in accordance with article 20 (2) of the Criminal Procedure Code, initiated through a justice of the peace.
2.23On 27 February 2013, G. tried to force Y. to have sexual intercourse. When she refused, he hit her in the head several times, causing a contusion of the left parietal region. The author sought medical assistance. A record was prepared to the effect that she had suffered injuries that included bruising in the parietal area of the head. She submitted a complaint to the Zyablikovo District police department. During the preliminary investigation, her father confirmed that her husband had been violent. Nevertheless, on 5 March 2013, the police refused to open a case under articles 112 (intentional infliction of injury), 119 (threat of murder) or 213 (hooliganism) of the Criminal Code. The author was informed that she could submit a complaint to the justice of the peace in a private prosecution case. Out of fear, however, the author did not do so.
2.24In the light of the violence she had suffered, in April 2013, Y. sought assistance at the Nadezhda Centre for the Social, Legal and Psychological Protection of Women, at which she was provided with psychological support.
2.25On 6 May 2013, Y. filed for divorce and division of property at the Nagatinsky District Court of Moscow. On 11 September 2013, her marriage was dissolved. The parties approved a settlement agreement, according to which the family apartment became the property of the author. Despite that agreement, G. remained in the apartment and continued to inflict violence on the author.
2.26Y. notes that, on the night of 7 August 2014, G. hit her in the head. She called the police and sought medical assistance. According to the medical records, she suffered injuries that included soft tissue bruising of the head. On 9 August 2014, she submitted a complaint to the Zyablikovo District police department. On 10 August 2014, the police refused to open a criminal case and informed the author that she could submit a complaint to the justice of the peace.
2.27On 5 September 2014, Y. requested the Nagatinsky District Court to order the eviction of her husband from her apartment. On 1 December 2014, the court ordered the husband to vacate the property.
2.28On 17 November 2014, the Nagatinsky Inter-District Prosecutor reversed the decisions of the police of 5 March 2013 and 10 August 2014 not to open a criminal case. On 30 December 2014, the police refused to open a criminal case on the basis of the complaints of 27 March 2013 and 9 August 2014. On 4 March 2015, that decision was reversed by the Nagatinsky Inter-District Prosecutor.
2.29Y. indicates that an evaluation of her medical records regarding the incident of 27 February 2013 was conducted on 18 May 2015, and an evaluation of her records regarding the incident of 7 August 2014 was not conducted until June 2015. To date, the author has received no update from the police regarding her complaints.
Exhaustion of domestic remedies
2.30Regarding the exhaustion of domestic remedies, the authors note that they have persistently appealed to the district prosecutors and courts against the decisions of the police not to open criminal cases. In their complaints, the authors referred to the provisions of the Convention, including articles 1, 2 and 5 (a) thereof, and to articles 3, 8 and 14 of the European Convention on Human Rights. They mentioned the lack of meaningful investigation; the reliance on stereotypes in the approach of the police regarding domestic violence; the degree of risk faced by the victims; the capacity of victims to defend their rights independently; and the illegality of the decisions not to initiate criminal cases. They also claimed that they were victims of discrimination with no remedy available to them; and that they had experienced breaches of their right to access to justice, of the prohibition of discrimination, torture and inhuman treatment and of their right to private and family life.
2.31In September 2013, X. submitted a complaint to the prosecutor of Krasnogvardeisky District in Saint Petersburg about the inadequacy of the investigation into her domestic violence complaints and the fact that she had not been informed of any progress thereon. The prosecutor dismissed her complaint on 20 September 2013. In November 2013, she submitted a complaint to the prosecutor of Krasnogvardeisky District, because no inquiry under article 20 (4) of the Criminal Procedure Code had been opened by the police. She referred to, inter alia, articles 1, 2 and 5 (a) of the Convention. Her complaint was dismissed by the prosecutor on 6 December 2013.
2.32On 25 November 2013, she filed a complaint with the Krasnogvardeisky District Court regarding the inadequacy of the investigation into her domestic violence complaints that were registered on 9 July and 14 October 2013 and the refusal to open criminal cases. Her complaint was rejected on 23 December 2013. The author submitted an appeal against that decision. On 17 April 2014, her appeal was dismissed by the Saint Petersburg City Court.
2.33On 25 November 2013, she filed a complaint with the Krasnogvardeisky District Court regarding the inadequacy of the preliminary inquiry into her complaint that was recorded on 5 June 2013 and the refusal of the police to open a criminal case. In her submission, she referred to, inter alia, articles 1, 2, 3 and 5 of the Convention. The District Court dismissed the complaint on 14 January 2014. That decision was upheld on appeal by the Saint Petersburg City Court on 13 May 2014. The District Court re‑examined the case on 27 June 2014 and recognized the prolonged duration and inadequacy of the preliminary inquiry, but upheld the rest of the decision. The decision was confirmed on appeal by the Saint Petersburg City Court, on 1 October 2014.
2.34On 13 March 2014, X. filed a complaint with the Krasnogvardeisky District Court regarding the illegality of the acts of the officers of police departments No. 13 and No. 26, alleging inadequate investigation, unlawful refusal to open criminal cases under article 20 (4) of the Criminal Procedure Code and the unlawful transfer of her case to the justice of the peace. She invoked her rights under, inter alia, articles 1, 2 and 5 (a) of the Convention. Her complaint was rejected on 9 June 2014. On appeal, on 26 August 2014, the Saint Petersburg City Court confirmed the decision of the District Court.
2.35On 10 November 2014, Y. filed an appeal with the Nagatinsky District Court of Moscow against the police decisions of 5 March 2013 and 10 August 2014 not to open a criminal case and the negligence of the police. She claimed that the violence that she had suffered was systemic and noted that the police had the authority to directly open a criminal case. In her appeal, she referred to, inter alia, articles 1, 2, 5 and 16 of the Convention and the Committee’s general recommendation No. 19. On 20 November 2014, the Nagatinsky District Court rejected her appeal because, on 17 November 2014, the Nagatinsky Inter-District Prosecutor had reversed the police decisions of 5 March 2013 and 10 August 2014 not to open a criminal case. The Court provided no reply to the author’s arguments.
2.36The Nagatinsky Inter-District Prosecutor ordered an independent medical examination in connection with the injuries sustained by Y. on 27 February 2013. The examination was carried out on 18 May 2015.
2.37On 30 December 2014, the police refused to initiate criminal proceedings in connection with Y. complaint of 27 July 2013. The author filed an appeal against that decision with the Nagatinsky District Court. On 16 March 2015, the Nagatinsky District Court dismissed the author’s complaint. The author filed a further appeal with the Moscow City Court on 26 March 2015. On 25 May 2015, the Moscow City Court rejected her appeal. The Court noted that the police had acted in accordance with the law and that no negligence had been found.
2.38The authors submit that their rights under articles 1, 2, 3 and 5 of the Convention have been violated and that the State party should be requested to provide them with appropriate redress, including the effective investigation and punishment of the perpetrators, monetary compensation for moral damages, public recognition of the violations, a public apology and the provision of psychological rehabilitation. As to general measures, they assert that the State party should undertake the following: nullify the provisions of criminal law and criminal procedure law relating to the private prosecution of crimes committed within the family; guarantee that criminal prosecution of domestic violence cases be carried out only on behalf of the State; release victims of domestic violence from the responsibility of appearing in court after they have testified; provide victims of domestic violence with free legal aid in any form of legal proceedings, including free legal assistance in criminal proceedings; provide sufficient crisis centres to guarantee shelter and psychological rehabilitation services for victims of domestic violence; provide mandatory training for officers of law enforcement and judicial agencies on issues of women’s rights and gender-based violence, including domestic violence; provide mandatory rehabilitation programmes for perpetrators of domestic violence; and collect large-scale statistics on crimes committed against women.
3.1The authors claim that the facts as submitted amount to a violation of their rights under article 1 of the Convention, taking into consideration the Committee’s general recommendations No. 19, No. 28 and No. 33. They contend that the State party has failed to fully implement the Convention and, in particular, to introduce comprehensive legislation on domestic violence in line with international law and to ensure that that legislation is put into effect by State actors who understand and adhere to the obligation of due diligence. As a result, the authorities failed to take measures to prevent violence in the families of the authors; the acts of domestic violence reported were not properly investigated; and neither of the perpetrators was sanctioned. Moreover, the authors have been denied any effective remedy.
3.2The authors note that, according to the Committee, obstacles and restrictions that prevent women from realizing their right to access to justice on an equal basis with men, such as gender stereotyping, discriminatory laws, procedural or evidentiary requirements and practices, and the failure to systematically ensure that all women have access to judicial mechanisms, constitute a violation of women’s human rights. Failures of the State party led to multiple violations of the authors’ rights under article 2 (b) to (f) and under article 5 (a), read in conjunction with articles 1 and 3, of the Convention.
3.3The authors claim that the State party has not implemented even a minimum set of measures aiming at effective protection in cases of domestic violence. There is no specific law on domestic violence, the definition of domestic violence is absent from domestic law, and not every form of domestic violence is punishable under the Criminal Code or the Code of Administrative Offences, namely, insults, threats, harassment, stalking and economic and psychological abuse. The majority of domestic violence cases remain private prosecution cases, which place an unbearable burden on the victims, who must act as counsel for the prosecution during the criminal proceedings. This procedure is used in cases of battery and infliction of light bodily injuries. Acting as a private prosecutor imposes a high burden of proof on the victim. The police carry out no investigation and the prosecutor does not act as such; rather, their responsibilities are directly placed on the victim. The victim must independently draw up a petition to open a private prosecution case that adheres to all procedural requirements and submit it to the justice of the peace; summon and question witnesses for the prosecution in court; file a motion; request and obtain medical records and expert evidence; and question witnesses for the defence and the defendant. Failure of the victim to appear in court could result in the withdrawal of the case. As many as 20 hearings may be held, and the length of the trial may exceed one year. The victim must prove that the defendant is guilty beyond reasonable doubt.
3.4In addition, the safety of the victim is not assured during the trial. Women often continue to live with their aggressors and suffer violence. If a victim reconciles with the perpetrator during the proceedings, the case is withdrawn. In practice, justices of the peace frequently withdraw cases for this reason. According to the authors, the entire private prosecution system is therefore inadequate for addressing domestic violence cases. The fact that domestic violence cases are handled through private prosecution amounts to discrimination and a violation by the authorities of their positive obligations under article 2 (b), (c) and (f) of the Convention, read in conjunction with articles 1 and 3 of the Convention and taking into consideration the Committee’s general recommendations No. 19, No. 28 and No. 33. According to the authors, perpetrators of domestic violence should be prosecuted by the State in order to avoid the imposition of further burdens or additional risks on the victims.
3.5Regarding the initiation of a criminal case under article 20 (4) of the Criminal Procedure Code, the authors claim that, in practice, no such cases are opened by the police because: (a) only the psychological and physical health of the victim (the presence of a disability or serious illness) and her age are considered, while other important factors are disregarded; and (b) initiating the public prosecution of a criminal case is construed as a right but not an obligation of the police. With reference to the Committee’s general recommendation No. 33, the authors emphasize that the State party must ensure that its judicial system is of good quality. Evidentiary requirements must not be overly restrictive, inflexible or influenced by gender stereotyping. According to the authors, the narrow interpretation of the procedural law and the refusal to take into account the authors’ specific circumstances, the nature of the violence suffered or the degree of risk that the violence would recur amount to discrimination, in violation of article 2 (b), (c) and (f), read in conjunction with articles 1 and 3, of the Convention.
3.6The authors claim that, in handling their cases, the authorities were guided by the widespread misconception that domestic violence is not a serious crime and does not constitute a threat to the victim’s life, safety or integrity, but is a “private matter”, and that there is no public interest in prosecuting perpetrators of such crimes. Police and judges relied on the belief that women who are victims of domestic violence can easily defend their rights. For those reasons, the authorities did not show due diligence when dealing with the cases, and criminal cases were not opened even when the authors demonstrated the systemic nature of the violence that they suffered. The courts upheld the decisions not to initiate criminal proceedings.
3.7A police officer openly voiced a stereotypical opinion in court on 16 March 2015, to the effect that the officer was aware that Y.’s husband was a high earning businessman who was buying apartments and cars while the author sat at home. On 20 May 2015, the officer stated in court that it was unclear why the author did not go to stay with her parents. With reference to the Committee’s case law, the authors recall that gender stereotypes have a negative impact on the right of women to a fair trial and access to justice. By relying upon stereotypical views and attitudes in their approach in the authors’ cases, the authorities breached their obligations under article 5 (a) of the Convention, taking into consideration the Committee’s general recommendations No. 19, No. 28 and No. 33.
3.8The authors claim that the State party has failed to provide special training to its law enforcement officials, including the police, prosecutors and the judiciary, on addressing domestic and gender-based violence and has failed to provide statistics on the prevalence of such violence. As a result, when the authors contacted the authorities under threat, the latter failed to take appropriate action. The lack of adequate training and statistics amounts to a violation of the State party’s obligations to promote and fulfil women’s rights.
3.9The authors also claim that neither the State party’s law nor practice provide for rehabilitation programmes for perpetrators of domestic violence. No rehabilitation work was carried out with the perpetrators in the present case, even though the authorities were fully aware of the continuing domestic violence situations in both families. The inaction of the authorities constitutes a violation of article 2 (b), (e) and(f) of the Convention, taking into consideration the Committee’s general recommendations No. 19 and No. 24 (1999) on women and health.
3.10The authors further note that they were unable to receive free legal assistance in their domestic violence cases. X. requested legal aid from the centre for public assistance for families and children in the Krasnogvardeisky District of Saint Petersburg, but was advised to hire a private lawyer. Y. sought the assistance of the Nadezhda Centre in Moscow, but was able to obtain only a free legal consultation because the centre does not provide representation in proceedings before law enforcement agencies and courts. On 21 November 2011, a federal law on free legal aid was passed, but it does not cover domestic violence cases. The refusal of the State party to give adequate consideration to legal aid in domestic violence cases constitutes to a breach of article 2 (c) of the Convention, taking into consideration the Committee’s general recommendations No. 19, No. 28 and No. 33.
3.11The authors contend that the authorities considered their claims to be minor episodes and private family matters, and the authorities have not shown due diligence by carrying out effective and prompt investigations and ensuring the punishment of the perpetrators. X. was not questioned in connection with any of the complaints that she filed with the police. Her complaints were given only a cursory examination, with the police limiting the case file to reports on the impossibility of interrogating the author’s husband and witnesses. No medical records of the injuries sustained were requested from the medical centres. The police consistently refused to open criminal cases on the matter, even though the prosecutor’s office considered that the material was sufficient. Similarly, notwithstanding that Y. had repeatedly submitted domestic violence complaints to the police, the inquiry conducted was only cursory in nature. Medical records regarding the incidents in February 2013 were not retrieved until April 2014. In addition, an evaluation of the medical records regarding the incident of 27 February 2013 was not conducted until two and a half years later, in May 2015. The author was never informed of the outcome of the evaluation. No adequate inquiry was carried out regarding Y.’s report of August 2014. The police did not retrieve her statements or those of her husband or witnesses until December 2014, after she submitted a complaint for negligence. An evaluation of the medical records for the case was not ordered until June 2015. She has no information on the outcome of the proceedings. According to the authors, the refusal of the authorities to conduct prompt and effective investigations into their claims and bring the perpetrators to justice amounts to a violation of article 2 (b) to (f) and of article 5 (a), taking into consideration the Committee’s general recommendations No. 19 and No. 28.
3.12The authors claim that they have been deprived, through national law and practice, of effective domestic remedies and access to compensation and rehabilitation with respect to their criminal complaints on domestic violence. Their complaints were not properly investigated; instead, the authorities relied upon stereotypical views in their approach. In accordance with the Committee’s general recommendation No. 28, women whose rights under the Convention have been violated are entitled to reparation. In the light of the authorities’ persistent refusal to investigate, the authors were deprived of the right to compensation. As to rehabilitation, Y. has not been offered any rehabilitation by the State, and X. received rehabilitative treatment provided by a non-governmental organization. Their suffering was exacerbated by the ineffective investigation of their complaints, the failure to inform them of the progress of the inquiries and the courts’ upholding of the decisions of the police. The deprivation of effective domestic remedies and access to compensation and rehabilitation constitute violations of article 2 (b) and (e) of the Convention.
State party’s observations on admissibility
4.1In a note verbale dated 20 May 2016, the State party presented its observations on the admissibility of the communication. It notes that, under article 401 (1) of the Criminal Procedure Code, decisions that have entered into force are subject to cassation appeal. The effectiveness of the appeal process is upheld in the decision of inadmissibility of the European Court of Human Rights in the case of Abramyan and others v. Russian Federation, as well as in the views of the Committee in Medvedeva v. Russian Federation (CEDAW/C/63/D/60/2013).
4.2As neither of the authors had submitted an appeal under the cassation procedure, the State party considers that the present communication should be declared inadmissible under article 4 of the Optional Protocol for failure to exhaust domestic remedies.
Authors’ comments on the State party’s observations on admissibility
5.1The authors provided comments on the State party’s observations on 23 June 2016. They note that, in the European Court of Human Rights case cited by the State party, the proceedings were civil and not criminal and are therefore irrelevant to the present case. As to the views of the Committee in Medvedeva v. Russian Federation, the authors note that, in that case, the Committee concluded that the appeal in cassation would not have brought effective relief and was therefore not a remedy to be exhausted for the purposes of admissibility.
5.2In addition, in 2013 and 2014, all inquiries into the authors’ complaints were closed, with refusals to open criminal cases, before being quashed by the prosecutors and sent back to the same investigators, who then closed the cases again. The authors’ attempts to obtain redress in the district and city courts were unsuccessful. The authorities did not carry out a single meaningful inquiry into the authors’ allegations, which reflects a pattern in dealing with domestic violence cases.
5.3In addition, the statutory limitations period for domestic violence allegations is very short (two years) and had expired in connection with several incidents affecting the authors. In view of the fact that court proceedings in domestic violence cases in Moscow and Saint Petersburg can take up to 18 months, the likelihood of bringing perpetrators to justice is very low. In some cases, acts of battery and infliction of injuries have not been prosecuted by virtue of amnesty acts, such as the amnesty granted in connection with the seventieth anniversary of the victory in the Great Patriotic War (1941–1945).
5.4The authors emphasize that the State party has referred to remedies that are extraordinary, unreasonably prolonged and unlikely to bring effective relief for the purposes of article 4 (1) of the Optional Protocol.
State party’s additional observations on admissibility and the merits
6.1In a note verbale dated 9 December 2016, the State party provided further observations on admissibility and the merits. It provided statistics to show that cassation appeals may be effective. In 2014, the Supreme Court examined 354 cases, of which it found in favour of the appellant in 340 cases: for example, 17 convictions were annulled and returned for new investigation in three cases; five cases were closed definitively; eight convictions were partly modified; and 10 appeal rulings were annulled and the cases were sent back for new examination. In 2015, the Supreme Court examined 240 cases, of which it found in favour of the appellant in 226 cases. In 2016, the Supreme Court examined 103 cases. The State party cites a number of examples of decisions of the Supreme Court in cassation appeals.
6.2The State party further notes that the European Court of Human Rights, in Abramyan and others v. Russian Federation, determined that the procedure modified in 2013 on the examination of cassation appeals in civil cases constituted an ordinary remedy to be exhausted prior to applying to the Court.
6.3On the merits, the State party recalls the facts of the case. It notes that both authors claim that the authorities failed to take measures to prevent domestic violence and, in particular, failed to carry out an investigation into the domestic violence that they reported, the perpetrators were not sanctioned and the authors were denied their right to effective remedy.
6.4The State party notes that both authors voluntarily lived with their husbands for a long time and were subjected to psychological and physical violence. The authors separated from their husbands only after a long period. Both were provided with psychological and legal aid in specialized centres near their places of residence, and X. was provided with housing.
6.5The authors submitted complaints regarding domestic violence to the law enforcement authorities. Investigations into all their complaints were carried out, but it was revealed that no corpus delicti regarding crimes more serious than those proscribed under article 116 of the Criminal Code could be established. The authors were informed that their complaints should be examined under private prosecution proceedings, which would be initiated by a justice of the peace at their request.
6.6The authors explained that they did not contact the justice of the peace because they were unfamiliar with the workings of the judicial system and were therefore unable to participate in the court sessions or act as private prosecutors (including preparing a request for the case to be opened, collecting evidence, calling witnesses and interrogating them in court and interrogating the accused). The authors objected to the procedure before the justice of the peace, the burden of proof being placed on the victim and the possibility that their cases could be closed given that there was no obligation to open a public inquiry into the acts of violence. According to the State party, the information required for the opening of a case before a justice of the peace is clearly established in article 318 of the Criminal Procedure Code. The content of that article was explained to the authors. In addition, in a private prosecution, under the provisions of the Code, the victim may be represented by a lawyer, a close relative or another person. The authors were represented by lawyers in the court of first instance and on appeal. They are also represented by counsel before the Committee.
6.7With regard to private prosecution, the Constitutional Court ruled in September 2013 that the Constitution guarantees to all State protection, including court protection, of their rights and freedoms, obliging the State to provide victims of crimes with access to justice and compensation for the harm suffered (articles 45, 46 and 52 of the Constitution). That obligation is also enshrined in article 21 of the Constitution. A similar approach is contained in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, of 1985, in which the General Assembly called upon States to ensure that court and administrative proceedings were responsive to the needs of victims of crime, including by providing adequate defence throughout the proceedings and also allowing the opinions and recommendations of victims to be expressed during the proceedings. The legislature has established the order of criminal court proceedings and the types of criminal prosecution, which, depending on the gravity and the nature of the crime that is committed, may be public, private-public or private.
6.8The type of criminal court proceedings in cases of private prosecution depend on the criminal case examined thereunder. Such crimes are often committed as a result of personality conflicts within the family or between neighbours or colleagues. Private prosecution cases are opened on the basis of the injured party’s claim. Private prosecutions are initiated in cases involving crimes that do not constitute a significant social danger and whose elucidation is not problematic in principle; for those reasons it is deemed that the injured party alone can bring the criminal prosecution. If any of the crimes in a case being examined under the private prosecution procedure are committed against a person who, because of his or her state of dependence or helplessness or for other reasons, cannot defend his or her rights or legal interests, the investigating authorities open a criminal case, even in the absence of a complaint by the injured party or his or her representatives.
6.9In the light of the above considerations, the State party is of the view that the authors’ rights under the Convention have not been violated.
Authors’ comments on the State party’s additional observations on admissibility and the merits
7.1In a letter dated 31 March 2017, the authors provided comments on the State party’s observations on admissibility and the merits. The authors reiterate that they have exhausted all available remedies, to no avail. According to the State party, the authors could have also: (a) submitted a cassation appeal under article 125 of the Criminal Procedure Code; and/or (b) pursued a private criminal prosecution.
7.2On the exhaustion of domestic remedies, the authors affirm that a cassation appeal cannot assure the restoration of the authors’ rights and does not provide a reasonable prospect of a positive outcome in the case, given that it constitutes an extraordinary remedy and its effectiveness in similar cases could not be confirmed in the courts’ case law. In a cassation appeal under article 125 of the Criminal Procedure Code, the judge cannot interfere in the investigation, annul or request the annulment of a decision that she or he considers unlawful or groundless or draw conclusions on the facts of the case, the evaluation of evidence or the qualification of the criminal acts. The court cannot oblige the opening ex officio of a criminal case or carry out specific procedural activities. For the same reasons, the European Court of Human Rights noted the ineffectiveness of the appeal proceedings under article 125 of the Code.
7.3As to the reference of the State party to the decision of the European Court of Human Rights in Abramyan and others v. Russian Federation and to the Committee’s views in Medvedeva v. Russian Federation, the authors note that, unlike in the present case, which refers to criminal law, the cases cited addressed matters of civil law. In addition, the State party cited Abramyan and others v. Russian Federation as evidence of the effectiveness of cassation proceedings. According to the authors, the European Court of Human Rights has never declared that proceedings under article 125 of the Criminal Procedure Code constitute an effective remedy to be exhausted prior to applying to the Court. In addition, in Gasan v. Russian Federation, the European Court of Human Rights found that the appeal procedure as amended did not constitute a standard remedy to be exhausted prior to applying to the Court. The cassation appeal proceedings cannot therefore be considered to be an effective remedy in cases similar to the present one. It is up to the State party to show that a particular remedy is effective, in particular, by providing examples of national court practice. That was not done in the present case. The authors contend that the examples quoted by the State party relate to cases that are different from the present one.
7.4The authors reiterate that private prosecution is not an adequate remedy in cases of domestic violence. The Committee has noted the need to provide women who are victims of domestic violence with prompt access to justice, including, when needed, to legal aid.
7.5In addition, the Committee has repeatedly recognized that the practice of qualifying domestic violence as a private matter is harmful and based on stereotypes. The practice of private prosecution places the burden of proof on the victim of violence, without ensuring the adequate protection of the victim (through a restraining order, for example). Only 20 per cent of criminal cases pursued through private prosecution end with a guilty verdict. Acquittals in cases of domestic violence account for 87 per cent of all acquittals in the Russian Federation. Non-governmental organizations have repeatedly pointed out the ineffectiveness of the procedure. In its concluding observations on the eighth periodic report of the Russian Federation (CEDAW/C/RUS/CO/8), the Committee expressed concern about the fact that domestic violence was treated as a “private matter” and recommended that the State party introduce ex officio prosecution of domestic and sexual violence. The European Court of Human Rights has also drawn attention to the need for criminal cases on family violence to be opened in the name of the State, irrespective of the readiness of the victim to initiate a private prosecution, and for perpetrators to be prosecuted and sanctioned.
7.6In the present case, the authors reported the domestic violence to the police and requested the opening of a criminal case, but the authorities refused to do so for a long time, referring to the need to carry out private prosecution proceedings. As a result, the violence against the authors continued. The existence of a constant threat to the authors and their children should have been taken into account as an extraordinary circumstance when the police were deciding whether to open a criminal case.
7.7In addition, an effective remedy, and access to that remedy, should take into account the special needs of victims of domestic violence. The private prosecution procedure requires the constant presence of the victim, even if she is represented by counsel. The absence of the victim from court leads to the closing of the case. Such proceedings are lengthy and, in addition, free legal aid is not provided, which limits access to the remedy, and recourse to such proceedings leads to the revictimization of the victims of violence. X. explained that, throughout the proceedings, each time she met her husband, he subjected her to physical violence in public places, in front of her minor daughter. Out of fear, she was obliged to seek out a shelter for victims of domestic violence. The remedy in question is therefore clearly inadequate in such circumstances, and the author had to risk her physical and psychological integrity when trying to exhaust it. Similarly, Y., who is a mother of three, was obliged to continue to live in the same apartment with her husband, who constantly subjected her to violence. She felt unsafe, but the authorities offered her no protection, despite being aware of the ongoing violence. Those circumstances prevented her from undertaking a private prosecution in her case. In addition, even with legal representation, the presence of the two authors would have been required in court. Furthermore, given the general amnesty act of 2015 on the seventieth anniversary of the victory in the Great Patriotic War, all attempts to have the perpetrators sanctioned would have been futile.
7.8In the light of the foregoing, the authors claim that the State party failed to demonstrate that the remedy invoked was adequate or that access to it was ensured, given that it could not bring effective relief, restore the authors’ rights or protect them against ongoing violence.
7.9In addition, the authors contend that the absence of special legislation regarding the protection of victims of domestic violence, urgent protection measures (protection orders) and free legal aid in domestic violence cases constitute violations of the Convention. In that connection, the authors note that the State party has not objected to that aspect of the communication.
7.10In 2016, article 116 of the Criminal Code, addressing battery of close relatives, was amended and the prosecution of such cases passed from the category of private to private-public (the case is opened by the police following a complaint by an injured party). In February 2017, battery of relatives was decriminalized and such acts no longer constitute a crime and are categorized as an administrative offence.
7.11In the light of the above considerations, the authors consider that they have done everything possible to protect their rights at the domestic level. For a long time, the authorities were aware of the authors’ situations of repeated violence and threats against them, but neither of the authors could receive the assistance that they needed. Given that they have submitted numerous complaints to the police and to the courts of first and second instance, the recourse to a further, extraordinary, ineffective and non-accessible remedy could not be seen as corresponding to the spirit of the Convention.
Issues and proceedings before the Committee
Consideration of admissibility
8.1In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol.
8.2In accordance with article 4 (2) (a) of the Optional Protocol, the Committee is satisfied that the matter has not already been and is not being examined under another procedure of international investigation or settlement.
8.3The Committee notes that the State party challenges the admissibility of the present communication on the grounds of non-exhaustion of domestic remedies. The State party observed that under article 401 (1) of the Criminal Procedure Code, court decisions that have obtained the status of res judicata may be subject to a cassation appeal. Neither of the authors, however, submitted a cassation appeal.
8.4The Committee has taken note of the authors’ objections as to the effectiveness of cassation proceedings in criminal cases. The Committee notes that the proceedings in question are aimed at challenging decisions that have entered into force, on points of law only. The decisions on whether to refer a case for hearing and examination by a cassation court are discretionary in nature, given that they are made by a single judge and do not have a time limit. In addition, the Committee notes that the State party, despite having provided some statistics (see para 6.1 above) on the recourse to cassation proceedings in recent years, has not submitted examples to show that that there is a reasonable prospect that such procedures would provide an effective remedy in the circumstances of the present case, nor has it given an indication of how many of those cases had dealt with domestic violence. Furthermore, requiring the author to submit further complaints would result in additional undue delay. The Committee therefore considers that it is not precluded, under article 4 (1) of the Optional Protocol, from examining the present communication. The Committee also considers that it has no reason to find the communication inadmissible on any other grounds and accordingly finds it admissible.
8.5Having found no impediment to the admissibility of the communication, the Committee proceeds to its consideration of the merits.
Consideration of the merits
9.1The Committee has considered the present communication in the light of all the information made available to it by the authors and by the State party, in accordance with article 7 (1) of the Optional Protocol.
9.2The Committee takes note of the authors’ claim that, in violation of their rights under article 1 of the Convention, taking into consideration the Committee’s general recommendations No. 19, No. 28, No. 33 and No. 35 (2017) on gender-based violence against women, updating general recommendation No. 19, the State party has failed to assure their protection against repeated acts of domestic violence. In the present case, both authors suffered repeated acts of domestic violence perpetrated by their husbands. All complaints submitted by the authors or by medical personnel on their behalf to the authorities and the police were in vain and no criminal cases against the perpetrators were opened, despite the two decisions by which the Nagatinsky Inter-District Prosecutor had reversed the police refusal to open a criminal case, and the perpetrators were therefore not sanctioned. X. was never questioned by the police on the content of her claims, and neither author was informed by the authorities of any progress in her case. Instead, the authors were informed that they could initiate private prosecutions against the perpetrators.
9.3The Committee recalls that discrimination against women within the meaning of article 1 of the Convention includes gender-based violence against women. Such discrimination is not restricted to action by or on behalf of States parties. Rather, under article 2 (e) of the Convention, States parties are accountable for private acts, if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation. In addition, the Committee recalls that article 2 (a), (f) and (g) establishes the obligation of States parties to provide legal protection and to abolish or amend discriminatory laws and regulations as part of the policy of eliminating discrimination against women.
9.4The Committee considers that, by adjudicating acts of domestic violence through a system of private prosecution, the State party cannot fulfil its due diligence obligation to prevent and punish acts of violence as part of its obligations under article 2 of the Convention. In addition, under article 4 (c) of the Declaration on the Elimination of Violence against Women, States are required to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private actors.
9.5The Committee notes the authors’ submission that the legislation in the State party does not include a definition of domestic violence and does not provide effective legal protection against domestic violence (see para. 3.3 above). The Committee recalls article 3 of the Convention and its concluding observations on the State party’s eighth periodic report, in which it recommended that the State party should urgently adopt comprehensive legislation to prevent and address violence against women, including domestic violence; introduce ex officio prosecution of domestic and sexual violence; and ensure that women and girls who are victims of violence have access to immediate means of redress and protection and that perpetrators are prosecuted and adequately punished (CEDAW/C/RUS/CO/8, para. 22 (a)). The Committee considers that the fact that a victim of domestic violence must resort to private prosecution, where the burden of proof is placed entirely on the victim, denies the victim access to justice. The Committee notes that the amendments to national legislation (art. 116 of the Criminal Code) that decriminalize battery, under which many domestic violence cases are prosecuted owing to the absence of a definition of “domestic violence” in Russian law, go in the wrong direction and lead to impunity for perpetrators of acts of domestic violence.
9.6The Committee considers that the failure by the State party to amend its legislation relating to domestic violence to align it with international standards directly affected the possibility of the authors’ being able to claim justice and to have access to efficient remedies and protection. Moreover, the Committee is concerned about the amendments of 2017, which reduced the scope of protection of women against domestic violence, thus leading to more widespread impunity.
9.7The Committee is of the view that, in the absence of a comprehensive law on domestic violence and without any proper definition of domestic violence in legislation, requiring the authors to initiate private prosecution proceedings, in which they must call and interrogate witnesses, collect evidence, ensure their constant presence, and thereby be forced to constantly confront the perpetrators directly at the trial or risk having the proceedings closed, with no protection system in place for victims of domestic violence, cannot be considered a proper mechanism to address, prosecute and sanction a crime as serious as domestic violence.
9.8The Committee considers that domestic violence constitutes a grave violation of human rights of such an intensity as to justify its being subjected to public prosecution and calls on the State party, within its prerogatives, to organize its own legal order to take into consideration international standards. The due diligence principle requires that the State party establish a system of effective and prompt investigation in cases of domestic violence, to ensure that perpetrators are prosecuted and sanctioned and that victims are provided with adequate relief. In the absence of any other information on file of pertinence, the Committee considers that due weight must be given to the authors’ detailed allegations. Accordingly, the Committee considers that the facts as presented reveal a violation of the authors’ rights under articles 2 (a), (e) to (g) and 3 of the Convention, read together with article 1 of the Convention and taking into consideration the Committee’s general recommendations No. 19, No. 28, No. 33 and No. 35.
9.9The Committee notes the authors’ claim, which remained unrefuted by the State party, to the effect that the authorities, when addressing the authors’ claims, addressed the acts of domestic violence as constituting “a private matter” and relied upon stereotypical views and attitudes in its approach. The Committee reaffirms that the Convention places obligations on all State organs and that States parties can be responsible for judicial decisions that violate provisions of the Convention. The Committee also emphasizes that the full implementation of the Convention requires States parties not only to take steps to eliminate direct and indirect discrimination and improve the de facto position of women, but also to modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and a consequence of discrimination against women. Gender stereotypes are perpetuated through various means and institutions, including laws and legal systems, and can be perpetuated by State actors in all branches and at all levels of government and by private actors. The Committee also stresses that stereotyping affects the right of women to a fair trial and that the judiciary must be careful not to create inflexible standards on the basis of preconceived notions of what constitutes domestic or gender-based violence, as noted in its general recommendation No. 33.
9.10In the absence of further information of pertinence on file, the Committee decides that due weight must be given to the authors’ allegations. Accordingly, the Committee considers that the facts as submitted reveal a violation of the authors’ rights under article 5 (a) of the Convention, taking into consideration the Committee’s general recommendations No. 19, No. 28, No. 33 and No. 35.
9.11In the light of the foregoing conclusions, the Committee will not examine any of the authors’ other claims.
10.In accordance with article 7 (3) of the Optional Protocol and taking into account the foregoing considerations, the Committee considers that the State party has infringed the rights of the authors under articles 2 (a), (e), (f) and (g), 3 and 5 (a) of the Convention, read together with article 1 of the Convention and taking into consideration the Committee’s general recommendations No. 19, No. 28, No. 33 and No. 35.
11.The Committee makes the following recommendations to the State party:
(a)Concerning the authors of the communication:
(i)Proceed to a review of the judicial proceedings concerning the cases of domestic violence against both authors, with a view to having the perpetrators prosecuted and sanctioned;
(ii)Grant the authors appropriate reparation and comprehensive compensation commensurate with the seriousness of the infringement of their rights and provide them with rehabilitation services;
(iii)Conduct an exhaustive and impartial investigation to determine the failures in the State party’s structures and practices that have caused the authors to be deprived of protection;
(i)Sign and ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence;
(ii)Adopt comprehensive legislation to prevent and address gender-based violence, including domestic violence, introduce ex officio prosecution of domestic and sexual violence and ensure that women and girls who are victims of violence have access to immediate means of redress and protection and that perpetrators are prosecuted and adequately punished;
(iii)Systematically establish criminal public prosecution of domestic violence and reconsider the system of private prosecution in cases of domestic violence, which unduly places the burden of proof entirely on victims of domestic violence, in order to ensure equality between the parties in judicial proceedings, in accordance with paragraph 15 (g) of general recommendation No. 33;
(iv)Put in place a protocol for handling domestic violence complaints in a gender-sensitive manner at the level of police stations to ensure that no urgent or genuine complaint of domestic violence is summarily set aside and that victims are given adequate protection in a timely manner;
(v)Provide mandatory training for judges, lawyers and law enforcement personnel, including police and prosecutors, on the Convention, the Optional Protocol thereto and the Committee’s general recommendations, in particular general recommendations No. 19, No. 28, No. 33 and No. 35;
(vi)Fulfil its obligations to respect, protect and fulfil the human rights of women, including the right to be free from all forms of gender-based violence, particularly domestic violence, intimidation and threats of violence;
(vii)Investigate promptly, thoroughly, impartially and seriously all allegations of gender-based violence against women, ensure that criminal proceedings are initiated in all such cases, bring the alleged perpetrators to trial in a fair, impartial, timely and expeditious manner and impose appropriate penalties;
(viii)Provide victims of gender-based violence with safe and prompt access to justice, including free legal aid where necessary, in order to ensure that they have access to available, effective and sufficient remedies and rehabilitation in line with the guidance provided in the Committee’s general recommendation No. 33;
(ix)Provide offenders with rehabilitation programmes and programmes on non-violent conflict resolution methods;
(x)Develop and implement effective measures, with the active participation of all relevant stakeholders, such as women’s organizations, to address the stereotypes, prejudices, customs and practices that condone or promote domestic violence.
12.In accordance with article 7 (4) of the Optional Protocol, the State party shall give due consideration to the views of the Committee, together with its recommendations, and submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee. The State party is also requested to publish the present views and recommendations and to have them widely disseminated in the State party, in order to reach all sectors of society.