Communicated on 12 July 2017

THIRD SECTION

Application no. 65557/14 Svetlana Sergeyevna POLSHINA against Russia lodged on 26 September 2014

STATEMENT OF FACTS

The applicant, Ms Svetlana Sergeyevna Polshina , is a Russian national who was born in 1987 and lives in St Petersburg. She is represented before the Court by Ms V. Frolova , a lawyer practising in St Petersburg.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background

On 14 February 2009 the applicant married P. In April 2009 she gave birth to a boy, R.

According to the applicant, from the outset her marriage was ruined by constant scandals and fights with P.

On 4 October 2011 the applicant divorced P. The ex-spouses nevertheless lived together occasionally until May 2012.

After the divorce the child ’ s place of residence was not determined legally.

2. Description of the incidents and response of domestic authorities

The applicant submitted that on 13 August 2011 P. grabbed her by the chin and hit her head against the door. She immediately left the house with R. and filed for divorce. The applicant also recorded the injuries (a medical certificate stated that she had two bruises on the left side of her jaw and on the right side of her forehead) and lodged a complaint with the police seeking criminal investigation into alleged murder threats and battery.

Following a preliminary inquiry, the request for the criminal investigation was dismissed on 22 August 2011. It was noted that there was no evidence proving that P. had threatened the applicant with murder. As for the accusations of battery, it was explained to the applicant that for an investigation to be opened she would have to lodge a special private prosecution complaint with a court. For unknown reasons she did not proceed with that option until 2014 (see below).

The applicant and R. lived separately from P. until early 2012. The applicant submitted that at that point she forgave him and allowed him to move into her new apartment.

After fresh conflicts in February 2012 the couple once again separated. On 4 May 2012, with the consent of the applicant, P. took R. to live with him.

On 19 June 2012 a verbal argument brok e out between the applicant and P. The applicant claimed that P. had threatened to kill her. She lodged a new complaint with the police which was dismissed on 28 June 2012 for lack of evidence.

The dismissal was quashed on 8 February 2013 but only in order to establish – at P. ’ s request – whether the applicant should be charged with making false accusations.

In late June 2012 the applicant relocated and concealed her new address from P. The child lived with her on weekdays and with P. at weekends. Each party accused the other of obstructing child visits.

On 3 July 2012 the applicant had a phone conversation with P., during which the latter allegedly threatened to murder her.

On the same day the applicant lodged a complaint with the police. Following several rejections of the complaint and annulments of those rejections, on 27 June 2014 it was eventually dismissed as unsupported by evidence. During a police interview P. stated that he had not threatened the applicant. On the contrary, he claimed that he had offered to talk to the applicant in the presence of a police officer, but she had refused. Despite the refusal to initiate a criminal investigation, P. was put on a control list for regular supervision by the police.

On 20 November 2012 P. allegedly grabbed the applicant by the chin and threatened to kill her.

The applicant reported the incident to the police and asked them to institute criminal proceedings. On 22 December 2012 the request was dismissed. It was noted that there was no evidence warranting a murder ‑ threat investigation. As for alleged battery, the applicant was advised to initiate criminal proceedings via a private prosecution. The applicant did not proceed with that option until 2014 (see below).

On 4 December 2012, whilst they were standing in the street, P. had a verbal argument with the applicant about the child ’ s place of residence. It appears that P. picked up the child in his arms and attempted to run towards a metro station. According to the applicant, while doing so P. pushed her over and she apparently fell to her knees and bruised them. P., however, denied that he had pushed or harmed the applicant in any way.

Following the preliminary inquiry, on 27 June 2014 the police decided not to initiate a criminal investigation into either the murder threats or the alleged battery, taking the view that the lack of any witnesses or material evidence made it impossible to establish the true course of the events. Despite the refusal to open an investigation, P. was interviewed and was again put on the control list.

On 14 January 2013 the applicant lodged a new complaint with the police, seeking the institution of a criminal investigation into all instances of murder threats and physical assaults. On 28 March 2013 that complaint was dismissed as repetitive and unsubstantiated. It was also stated that all the conflicts had arisen out of arguments over the child-visit arrangements and the applicant was advised to institute civil proceedings on this matter.

On 3 November 2013 P. came to the applicant ’ s house and demanded to see his son. Following her refusal, a fight ensued between P. and the applicant ’ s new husband. Both received injuries (multiple bruises and abrasions).

On the same day the applicant ’ s new husband lodged a complaint with the police, asking them to open a criminal investigation. On 12 November 2013 the complaint was dismissed because it was not possible to establish the sequence of events.

In 2014 the applicant instituted criminal proceedings against P. in a private prosecution. The applicant accused P. of two counts of battery: one on 13 August 2011 and another one on 20 November 2012. On 27 May 2014 the proceedings were discontinued following a friendly settlement between the parties.

B. Relevant domestic law

1. Russian Criminal Code

Relevant provisions of the Criminal Code (as in force at the relevant time) read as follows:

Article 115 – Intentional infliction of a minor injury

“1. Intentional infliction of a minor injury which has caused health damage for a short period of time or caused an insignificant stable loss of the general working capacity ( незначительная стойкая утрата общей трудоспособности ) ...”

Article 116 – Battery

“1. Battery or commission of similar violent actions which have caused physical pain but not involved consequences referred to in Article 115 of the Criminal Code ...”

2. Russian Code of Criminal Procedure

The relevant provisions of the Code of Criminal Procedure (as in force at the relevant time) were as follows:

Article 20 – Types of criminal prosecution

“ 1. Depending on the nature and gravity of a committed crime, the criminal prosecution, including the charge at the trial, shall be conducted in a public, a semi ‑ public or a private prosecution procedure.

2. Cases dealing with crimes under Articles 115 § 1, 116 § 1, 128.1 of the Criminal Code are cases of private prosecution: [criminal proceedings] in these cases are initiated only in response to a complaint from the victim or from his or her legal representative, with the exception of cases enumerated in paragraph four of the present Article; [criminal proceedings] shall be subject to termination upon reconciliation of the victim with the accused. Reconciliation is possible until the court departs to the deliberations room for sentencing.

...

4. The head of an investigative agency or an investigator or an investigating official who has the consent of a prosecutor may open a criminal case in respect of any crime enumerated in paragraphs two and three of this Article in the absence of a request from the victim or his or her legal representative if the crime was committed against a person who, due to their dependent or helpless condition or for other reasons, cannot defend his or her rights and legal interests. Other reasons shall include cases in which a crime has been committed by an unknown person.”

Article 318 – Institution of a criminal case by private prosecution

“1. Criminal cases pertaining to the crimes enumer ated in Article 20 § 2 of this Code shall be instituted against a specific person by means of the submission of an application to a court by the victim or his or her legal representative ...

...

5. The application shall contain:

1) the name of the court with which it is lodged;

2) a description of the nature of the crime, including the place and time and the circumstances thereof;

3) a request, addressed to the court, for a criminal case to be accepted for the examination;

3.1) information about the victim and his or her identity documents;

4) information on the person against whom the charge is brought;

5) a list of witnesses who are to be summoned to the court;

6) [the application shall be signed] by the person who has filed it.”

Article 319 – Powers of a Justice of the Peace in a private criminal prosecution

“...

2. Upon application from the parties, a Justice of the Peace shall have a right to render them assistance in collecting evidence which they cannot obtain on their own ...”

COMPLAINTS

1. The applicant complains under Articles 3 and 13 of the Convention that she was not protected from the physical and mental abuse to which she had been subjected by her ex-husband and that her complaints about it were dismissed by the authorities

2. The applicant also complains under Article 14 of the Convention in conjunction with Article 3 that the authorities systematically refuse to protect women from domestic violence.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 3 of the Convention? In particular, did the domestic authorities discharge their positive obligations to protect the applicant from domestic violence and to prosecute the party responsible for such violence (see, mutatis mutandis , Opuz v. Turkey , no. 33401/02, §§ 158-176, ECHR 2009)? In this connection, is a private prosecution mechanism in domestic violence situations compatible with the State ’ s positive obligations under Article 3 of the Convention?

2. Was the lack of protection of women against domestic violence, as alleged in the present case, in breach of Article 14 of the Convention, in conjunction with Article 3 (see Halime Kılıç v. Turkey , no. 63034/11, 28 June 2016; and Opuz v. Turkey , no. 33401/02, ECHR 2009)?

3. Has there been a violation of Article 13 of the Convention? In particular, did the applicant have at her disposal an effective remedy in respect of her complaint under Article 3 of the Convention alone and in conjunction with Article 14?