In a judgment on May 23, the European Court of Human Rights found against Bulgaria, saying that it had failed to protect in law and in fact an applicant who at the age of 15 had been a victim of domestic abuse at the hands of a 23-year-old man with whom she was living.
In the case of AE v Bulgaria, the court held unanimously that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, and a violation of Article 14 (prohibition of discrimination) in conjunction with Article 3.
The domestic abuse had included being beaten, kicked and strangled by the man, referred to as DM in the court judgment.
The court found in particular that the Bulgarian state had failed to protect AE in law – domestic-violence legislation was deficient – and fact – prosecutors had not opened criminal proceedings despite her vulnerable situation and the report that she had been subjected to repeated domestic violence.
Following an attack in September 2019, AE sought medical help at a hospital, with medical records showing that she had, among other injuries, extensive bruising.
AE’s mother went to social services following the incident, and they in turn contacted the prosecutor’s office. They included a description of the circumstances and of several attacks which AE had allegedly suffered at DM’s hand, emphasising that she was a minor.
As her mother was unable to exercise parental control, , an order was issued by social services for AE’s placement outside the family.
The Kostinbrod prosecutor ordered a preliminary check, to be carried out by the police into the complaints. The police interviewed AE and her mother, with the latter alleging, among other things, that her daughter had been kicked in the stomach and strangled by DM. In his police interview DM denied both physical and psychological abuse.
In November 2019, the prosecutor decided not to open criminal proceedings, finding that only an offence subject to private prosecution, namely minor bodily harm, had been committed.
AE applied for that decision to be overturned, but the Sofia regional prosecutor refused to do so, stating, among other reasons, that there was no evidence that her life had been in danger or that she had even lived in a couple with DM. That decision was later upheld by the Sofia appellate prosecutor and Supreme Cassation Prosecutor’s Office.
The European court held that the physical violence that AE had suffered had, when combined with the intimidation and distress she must have felt, been sufficiently serious to qualify the treatment which she had endured as “degrading”.
Regarding private prosecutions as the means to secure justice in domestic abuse cases, the European Court of Human Rights reiterated that that put an excessive burden on the victim and could not prevent the recurrence of similar incidents.
In order for domestic violence to be publicly prosecuted under Bulgarian law, recurrent acts of violence had to be established.
Given the propensity for violence to worsen over time, requiring repeated violence for the state to intervene did not meet the authorities’ obligation to respond immediately to allegations of domestic violence and to demonstrate special diligence in that context, the court said.
As regards the national authorities’ refusal to qualify the attacks as domestic violence as the couple’s relationship had not met the legal definition, the court found that this would filter out many incidents of violence against women by their partners and would not meet Bulgaria’s Article 3 obligations.
It held that Bulgaria had not put in place an effective system to punish all forms of domestic violence and provide sufficient safeguards for victims.
The court noted that social services had informed the prosecutor of the repeated and serious nature of the alleged assaults, which have been investigated. Instead the prosecutor relied entirely on the preliminary inquiry. The refusal to open criminal proceedings was all the more serious given the vulnerable situation of the applicant, the court said.
The court held that Bulgaria had not put in place an effective system to punish all forms of domestic violence and provide sufficient safeguards for victims. The state failed to protect AE adequately either in law or in fact, leading to a violation of Article 3.
The court noted that this was the third such case against Bulgaria and that women are the predominant victims of domestic violence in Bulgaria.
As a female victim of domestic violence in Bulgaria, AE had been in an unequal position which had required action on the part of the authorities in order to redress the disadvantage associated with her sex in that context.
The Bulgarian government had failed to show what policies they had pursued to protect domestic-violence victims and to punish offenders, the court said.
The court found in the applicant’s case, under Article 3, that the relevant legislation was deficient.
The court admonished the State for the continued absence of official comprehensive statistics, given the level of domestic violence in Bulgaria and the obligation to pay particular attention to the effects on women and to act accordingly. It also noted that Bulgaria had not ratified the Istanbul Convention.
The court held that the government had failed to disprove institutional inaction on the part of the authorities. As it was not necessary for AE to show she had been individually a victim of prejudice on the part of the authorities, the Court concluded that there had been a violation of Article 14 in conjunction with Article 3.
The court held that Bulgaria was to pay the applicant 10 000 euro in respect of non-pecuniary damage, and 3000 euro in respect of costs and expenses.
Source : SofiaGlobe
