In Volodina v Russia (Application No 41261/17);  ECHR 539 the European Court of Human Rights has held that domestic violence falls within the description of inhuman or degrading treatment for the purposes of Article 3, such that where the police receive a complaint of this, they are likely to have an obligation to launch an investigation into it for the purposes of identifying and punishing the perpetrator and, possibly, to take protective measures against such further behaviour.
The Claimant, a woman, and her ex-partner, a male, separated when the ex-partner became abusive. Over the course of a number of months, the Claimant made the following complaints to the police:
- On 1st January 2016, her ex-partner damaged the windscreen of her car and took her identity papers. The Claimant later withdrew her report;
- After the Claimant relocated to another city, her ex-partner effectively kidnapped her on 21st January 2016, when she entered a car with a person who she thought was going to interview her for a job and her ex-partner emerged from the back seat, took her phone, drove her back to where they lived and punched her in the face and stomach, resulting in a medically-induced abortion. The police declined to institute proceedings because the Claimant provided no written complaint;
- On 31st March 2016, the police obtained a written statement from the Claimant withdrawing her complaints and refusing to undergo a medical assessment. The police declined to institute proceedings in the absence of a complaint;
- On 17th May 2016, the Claimant’s ex-partner punched her in the face, threw her to the ground and strangled her. The Claimant complaint to the police, where her injuries were recorded. On 9th August 2016, the police asked the Claimant to undergo a medical assessment, to which she refused. The police declined to prosecute;
- On 30th July 2016, the Claimant’s ex-partner opened a car door and attacked her. Two days later, the ex-partner told the Claimant that he had damaged her car brakes, which the Claimant reported to the police and which they confirmed. The police declined to prosecute on the basis that the Claimant and her ex-partner maintained a common household, there was no independent assessment of the damage and that a single blow was not an offence;
- In September 2016, the Claimant found a GPS tracker in the lining of her bag, which she believed her ex-partner had put there;
- In early 2018, the Claimant’s ex-partner posted private photographs of her on social media;
- On 12th March 2018, the Claimant told the police that her ex-partner had made threatening calls to kill her and had appeared in front of her home. The police declined to prosecute on the basis that there was no danger;
- On 21st March 2018, the Claimant’s ex-partner cut-off the taxi in which she was travelling, pulled her out the car and dragged her towards his car. The Claimant sprayed him with tear gas. The ex-partner pushed the Claimant several times, grabbed her purse and phone and drove away. The police declined to investigate when the ex-partner returned the items.
The European Court of Human Rights held this to be a violation of Article 3. It held that the court had to consider the nature and context of the treatment, its duration, its physical and mental effect and, also, the sex of the victim and their relationship with the perpetrator. It repeated that behaviour could fall within Article 3 where the victim was humiliated in their own eyes, even if not in the eyes of others .
Here, the physical acts fell within Article 3 – but also so did the psychological impact, which formed an important part of domestic violence . The feelings of fear, anxiety and powerlessness experienced as a result of controlling and co-receive behaviour amounted to inhuman treatment .
The state was obliged to interfere with private and family life in order to protect the rights of others in certain circumstances. The risk of a real and immediate threat had to be assessed taking account of the particular context of domestic violence and of the recurrence of successive episodes of violence within a family. Measures should stop the abuser from perpetrating further violence against a victim .
The Claimant had reported her ex-partner’s violence on seven different dates between 1st January 2016 and 21st March 2018. The police ought to have been aware of the violence to which she had been subjected and the real and immediate risk that violence might recur. They therefore had an obligation to take all reasonable measures for the Claimant’s protection.
As to the obligation to carry out an effective investigation into allegations of ill-treatment, the Court held that the authorities were required to take all reasonable steps to secure evidence. Special diligence was required in dealing with domestic violence cases, the nature of which had to be taken into account . There had been seven episodes of violence, yet the authorities never once opened a criminal investigation into this . A refusal to open a criminal investigation was indicative of a failure to comply with the Article 3 procedural obligation.
Further, the failure to act promptly meant that evidence was lost. The Claimant’s refusal to undergo medical examination almost two months and, later, three months after reported events was not to be held against her as they had become pointless .
The Court reiterated that the prohibition of ill-treatment under Article 3 covered all forms of domestic violence “without exception” and every such act, even a single blow, triggered the obligation to investigate. Threats were a form of psychological violence, which did not require a direct and immediate threat to life or health .
Together with other systemic failures of the state to adopt legislation to combat domestic violence and tolerating the discriminatory effect of this upon women, the court awarded €20,000 in damages.
It is unclear whether this decision seeks to expand Article 3 threshold; the modified Osman test, which provides that Article 3 confers protection from degrading treatment arising from “criminal acts” is mentioned only once in the whole of the majority judgment . Its application is, however, specifically criticised in the dissenting judgment .
In the event, the interest of this blog is in the criticisms of the police and what the Court will expect of them. Plainly, the failures of the Russian legal system and legislation formed a significant part of the decision – which might not be thought to apply directly here.
The state of domestic law in relation to police investigations remains as stated in DSD v Comr of Police of the Metropolis  UKSC 11;  AC 196, in which the Supreme Court held that laws which prohibit conduct constituting a breach of Article 3 must be rigorously enforced and complaints of such conduct must be properly investigated . To this can now be added the finding of the EctHR that domestic violence will fall within the definition of ill-treatment for the purposes of Article 3, requiring the police to investigate such allegations.
The threshold for investigation is that stated by Green J in DSD in the High Court:  EWHC 436 (QB). Namely, that the duty to investigate is triggered where there is a “credible or arguable” claim by the victim or a third party that a person has been subjected to treatment which meets the description of torture or degrading or inhuman treatment in Article 3 . Where there is such an allegation, the police have to investigate in an efficient and reasonable manner, which is capable of leading to the perpetrator’s identification and punishment .
Note also that it may not be necessary for the police to have an actual complaint in order for the duty to arise: see OOO v Comr of Police of the Metropolis  EWHC 1246 (QB);  HRLR 29, where it was said that the duty of the police to investigate alleged breaches of Articles 3 or 4 was not limited to situations where they had received a complaint from the alleged victim; it was triggered once the police received a “credible allegation” of such an infringement regardless of how the information came to their attention .
It is noteworthy that in the Volodina, the Claimant made complaints and then withdrew them. The ECtHR’s position is that these were valid complaints, requiring investigation and/or further action. It may be that had the police sought to interview the Claimant further and/or used specially trained domestic violence police officers to make contact with and speak to her, she might have been able to provide further information and support police action. For police forces in England and Wales, this should reinforce that where a vulnerable person seeks to withdraw a complaint, the police should consider whether still to pursue the underlying matter – with care and sensitivity.
Further to this, however, is also the separate obligation of the police to take steps in order to prevent a known risk of ill treatment. The police will have a responsibility to take protective measures with respect to a person where there is a risk of a real and immediate threat to their rights under Articles 2, 3 or 4. This could, the ECtHR held, be by way of devices such as restraining orders or protections orders.
As stated above, the ECtHR placed much weight upon the discriminatory effect of domestic violence upon women. An analysis of the politics of that decision is beyond this blog, rather than the implications and obligations of the police. It is, however, doubtful that such behaviour in other situations should be treated any differently – whether female to male or within same-sex relationships.
Finally – this case provides another example of the value of damages for such a claim. For a series of such serious failures, which included discrimination contrary to Article 14, the court awarded €20,000.