Communicated on 3 September 2015

FIRST SECTION

Application no. 20289/10 Diana Mikhaylovna UDALOVA against Russia lodged on 31 March 2010

STATEMENT OF FACTS

The applicant, Ms Diana Mikhaylovna Udalova , is a Russian national, who was born in 1968 and lives in Voronezh.

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

A. The circumstances of the case

According to the applicant, she was a victim of domestic violence at the hands of her husband, a police officer. She endured it because they had a handicapped child and the husband was the only family breadwinner.

In particular, on 17 August 2006 she was, allegedly, beaten up by her husband.

On 18 August 2006 the applicant underwent a medical examination by a forensic expert. She recorded the presence of bruises on the applicant ’ s chest and shoulders.

On 4 September 2006 the Tsentralnyy district prosecutor ’ s office refused, on unspecified grounds, to institute criminal proceedings against the husband. The applicant did not seek judicial review in respect of this refusal to prosecute.

Instead, since the matter fell within the scope of private prosecution under the Russian Criminal Code, on 28 September 2006 the applicant instituted criminal proceedings before a peace justice. There is no indication that she raised any pecuniary claims against her husband in these proceedings or, eventually, in separate proceedings.

Also, it does not appear that any preliminary investigation was carried out by the authorities in respect of the private prosecution case.

On 7 August 2008 the peace justice suspended the proceedings, with reference to a note from a military commander stating that the husband had been serving abroad on a peace-making mission.

On 11 November 2008 the Tsentralnyy District Court of Voronezh annulled the suspension, indicating that no measures had been taken to summon the defendant.

On an unspecified date, the peace justice resumed the examination of the case. On 21 May 2009 the peace justice discontinued the case, noting that the statutory two-year for prosecution had expired.

On 21 August 2009 the District Court upheld the judgment.

On 1 October 2009 the Voronezh Regional Court upheld the lower courts ’ decisions. It also issued a “separate decision” ( частное определение ), stating that the suspension in 2008 was unjustified and that the delays in the case resulted in the expiry of the prosecution period.

B. Relevant domestic law and practice

1. Civil claims in criminal proceedings

Article 42 of the Code of Criminal Procedure ( CCrP ) provides that a victim of a criminal offence should receive compensation in respect of pecuniary damage caused by the crime; a claim for compensation in respect of non-pecuniary damage should be examined by the court dealing with the criminal case or under the rule of civil procedure.

Under Article 44 of the CCrP a civil claim could be lodged following “institution of criminal proceedings” ( возбуждение уголовного дела ) and until completion of the preliminary investigation ( предварительное расследование ). It is unclear whether it was possible under Russian law to lodge a civil claim within a case of private prosecution, in particular on account of Article 44 of the CCrP .

2. Civil claims in subsequent proceedings

Article 61 of the Code of Civil Procedure lists circumstances, in which a party is not required to adduce proof. In particular, a civil court must rely on the final judgment in a criminal case on the defendant ’ s guilt or innocence , as regards whether the impugned actions had taken place and whether they had been committed by the defendant.

It appears that the findings made in a court decision to discontinue a criminal case against the defendant on account of the expiry of the prosecution period do not have the quality of res judicata in a subsequent civil case concerning compensation in respect of damage caused by the defendant (see, for instance, decision no. 33-1307 of 21 July 2010 by the Ryazan Regional Court; decision no. 33-627/2012 by the Supreme Court of the Komi Republic of 9 February 2012; decision no. 33-13179 of 10 October 2012 by the St Petersburg City Court; decision no. 33-4714 of 13 August 2013 by the Saratov Regional Court; decision no. 33-11699/13 of 14 August 2013 by the St Petersburg City Court).

It appears that a refusal to institute criminal proceedings against the defendant ( отказ в возбуждении уголовного дела ) also does not have the quality of res judicata in a subsequent civil case concerning compensation in respect of damage caused by the defendant (see decision no. 33 ‑ 13119/2011 of 5 December 2011 by the Chelyabinsk Regional Court; decision no. 33-975/2014 of 18 March 2014 by the Belgorod Regional Court).

COMPLAINTS

The applicant complains under Article 3 and 13 of the Convention that the national authorities, including the courts, failed in their obligation to deal properly with the complaint of domestic violence; that she had no effective remedies.

The applicant also complains under Article 6 of the Convention that the domestic court delayed the proceedings, thus allowing expiry of the prosecution period and barring her access to justice. Lastly, she alleges that she had no effective remedies vis-à-vis this situation.

QUESTIONS TO THE PARTIES

1. Regarding the events on 17 August 2006:

(a) Did the Russian authorities, including courts, fail in their positive obligation to ensure that individuals within their jurisdiction are protected against ill-treatment prohibited under Article 3 of the Convention, including where such treatment is allegedly administered by private individuals, as in the present case, in the context of domestic violence (see Bevacqua and S. v. Bulgaria , no. 71127/01, §§ 82-83, 12 June 2008)?

(b) Did the national authorities fail in their procedural obligation under Article 3 of the Convention “to conduct an effective investigation” into the alleged ill-treatment, even if such treatment has been allegedly inflicted by private individuals (see M.C. v. Bulgaria , no. 39272/98 , § 151, ECHR 2003 ‑ XII, and Denis Vasilyev v. Russia , no. 32704/04 , §§ 98-99, 17 December 2009)? Did any such procedural obligation arise, in terms of Article 3, in respect of the courts dealing with the criminal case of private prosecution on account of domestic violence?

(c) Alternatively, was there a violation of Article 8 of the Convention in the present case?

2. Was there a violation of Article 13 of the Convention in conjunction with the above complaints under Articles 3 and 8? In particular, did the refusal to prosecute dated 4 September 2006 or the discontinuation decision of 21 May 2009 operate in the way blocking a civil judge from examining an eventual civil claim against the applicant ’ s husband or the State (see “Relevant domestic law and practice”; see also Shchiborshch and Kuzmina v. Russia , no. 5269/08 , § 278, 16 January 2014 )?

3. (a) Does the applicant have standing to raise complaints under Article 6 of the Convention in relation to her case of private prosecution?

(b) If yes, was there a violation of Articles 6 § 1 of the Convention on account of the length of the proceedings or on account of the bar to her access to a court because of the expiry of the prosecution time-limit?

(c) Was there a violation of Article 13 of the Convention in relation to the length of the proceedings?