CONCURRING OPINION OF JUDGE DEDOV

I concur with the separate opinion of Judge Pinto de Albuquerque as regards his analysis of the State obligations flowing from Article 3 of the Convention. However, I voted with the majority on the issue of just satisfaction.

SEPARATE OPINION OF JUDGE SERGHIDES

1. I fully subscribe to the separate opinion of Judge Pinto de Albuquerque. However, I would like to emphasise the importance of the effectiveness principle, in the context of Article 3 of the Convention.

A. The distinction between “torture”, “inhuman treatment” and “degrading treatment” in Article 3 of the Convention

2. The right under Article 3 of the Convention not to be tortured or to be subjected to inhuman treatment or degrading treatment distinguishes between violations suffered by a victim according to their intensity. This is the only provision of the Convention which sets out a classification according to the intensity of a violation. It is clear from the text and the object and purpose of Article 3 that its drafting as it stands could only be deliberate.

B. The distinction of Article 3 in the light of the effectiveness principle

3. In my humble view, it would undermine the level of protection of the right under Article 3 and the victim, as well as his or her human dignity, if the Court were to wrongly classify a violation as “inhuman treatment” instead of “torture”. Such a wrong classification, not being in line with the real intensity of the violation, would be against the text, and the object and purpose of Article 3. The distinction in Article 3 between the three kinds of violations according to their intensity is based on the effectiveness principle, which requires, in this connection, that, to give full effective protection to the right under Article 3, the Court must rightly assess the intensity of the violation and the corresponding positive obligation of the respondent State regarding such violation, taking into account the meaning, the threshold, and the differences between the three separate kinds of violation.

4. Support for the proposed view, namely that it is a requirement of the effectiveness principle that violations coming under Article 3 must be assessed correctly, according to their intensity, can be deduced by what the Court said in Selmouni v. France [GC], 25803/94, § 101, ECHR 1999-V:

“The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture ... However, having regard to the fact that the Convention is a ‘living instrument which must be interpreted in the light of present-day conditions’ ... the Court considers that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future . It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies .” (emphasis added).

The above statement is relevant and important to the issue in question in two respects: not only does it connect the assessment of what is “torture” with the protection of human rights, thus, the effectiveness principle (albeit in an indirect formulation), but it also makes the latter, through the living instrument doctrine, capable of requiring, at the present time, a greater firmness in assessing “torture”. This is so required, as the statement mentions, because of the “increasingly high standard being required in the protection of human rights and fundamental liberties.” This wording, as well as the Court’s admission in that case “that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future”, and its conclusion in that case in finding a violation amounting to torture (see paragraph 105 of that judgment), show that the Court effected an advanced and progressive interpretation of Article 3, as required by the Preamble of the Convention, namely “the maintenance and further realisation of human rights and fundamental freedoms”.

C. The conclusion of the Court in the light of the effectiveness principle

5. Regrettably, the Court’s conclusion to the effect that the respondent State failed to discharge its duty to investigate the “ill-treatment” which the applicant had endured (see paragraph 101 of the judgment), instead of concluding that the State in fact failed to investigate a “torture”, is based on an erroneous assessment of the facts and a misclassification of the kind of violation suffered by the applicant (see Judge Pinto de Albuquerque’s separate opinion). Hence, the Court did not provide the applicant with the effective protection required by Article 3.

6. That erroneous assessment had the result of reducing the amount of compensation payable in respect of non-pecuniary damage. Like Judge Pinto de Albuquerque, I would propose making a higher award in the present case. According to the effectiveness principle and the established case-law of the Court, the interpretation and application of the Convention provisions must be practical and effective and not theoretical and illusory.

[1] See paragraphs 40-45 of the present judgment.

[2] See paragraph 111 of the present judgment. This echoes my concurring opinion in ValiulienÄ— v. Lithuania, no. 33234/07 , 26 June 2013, in which I argued that a gender-sensitive interpretation and application, acknowledging gender ascriptions which define perceptions, relationships and interactions between men and women within societies, are necessary in order to pinpoint the actual disadvantages suffered by women. A gender-sensitive interpretation and application may consequently recognise and highlight the context within which women live in a certain society, acknowledge the disproportionate effect of violence on women and identify potentially debilitating circumstances that foster domestic violence incidents.

[3] The burden is shifted since the general understanding of domestic violence and relevant statistics have indicated that the persistent vulnerable position of women when experiencing gender-based violence in a domestic setting is exacerbated by inactivity on the part of a State. A State’s silent acquiescence and inability or unwillingness to act perpetuates the suffering of women and upholds their unequal societal standing. Consequently, a State faces an obligation not only to respect, but also to protect, through effective legislative and operative measures which include swift action by State agents in intervening in domestic-violence incidents.

[4] See paragraph 111 of the present judgment.

[5] The majority have also noted that the Council of Europe has been focused on working towards the achievement of gender equality, which will benefit from a gender-sensitive perspective that takes into account the context within which members of society find themselves. This effort was further reflected in the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”) which has pointed out the increased risk of women and girls to gender-based violence and under Article 6 proposed the implementation of gender-sensitive policies when implementing the Istanbul Convention. It is only natural that such gender-sensitive interpretation is equally utilised in the context of the European Convention on Human Rights (“the Convention”) which, as in the present case, views domestic violence as a potential violation of Article 3. The notion of particularly vulnerable categories of persons in respect of domestic violence was previously brought up in Hajduova v. Slovakia, no. 2660/03, 30 November 2010, where the European Court of Human Rights (“the Court”) found that the respondent State had insufficiently complied with its positive obligation to protect the applicant.

[6] See paragraphs 62, 64, 84, 117 and 128 of the present judgment.

[7] See paragraph 110 of the present judgment. This was equally highlighted in my dissenting opinion in Valiulienė v. Lithuania , cited above, in which I mention the broad and long-lasting consensus on the State’s positive obligation, triggered by the occurrence of violence against women (See Valiulienė v. Lithuania , cited above, at page 28).

[8] See the Istanbul Convention, Article 3(b).

[9] See paragraph 74 of the present judgment.

[10] In the leading case Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 146-154, 12 August 2008, the Court referred to several soft-law instruments which had highlighted the importance of the right to bargain collectively. Previously, in the seminal case Marckx v. Belgium (Plenary), no. 6833/74, §§ 41 and 58, 13 June 1979, the Court had already relied on the growing consensus (“clear measure of common ground in this area amongst modern societies”) regarding the need to treat children born out of wedlock on an equal basis to those born within wedlock and the general need for social protection of unmarried mothers and their children, a finding which was based on international instruments that were not binding on the respondent State.

[11] Although not binding for Russia, the Court does not refrain from citing the Istanbul Convention (see paragraph 60 of the present judgment). A growing consensus can be noted from the number of Council of Europe Member States which have ratified this Convention - to date, 34 member States. The European Union has further expressed its commitment to combatting gender-based violence by highlighting it as one of their priorities for the EU’s Strategic Engagement for Gender Equality for 2016-2019.

[12] See paragraph 88 of the present judgment.

[13] See paragraphs 112, 113 and 117-124 of the present judgment.

[14] For a more elaborate discussion on the strictness of the due-diligence test, see my separate opinion in ValiulienÄ— v. Lithuania , in which I draw reference from the Hajduova case, which requires a heightened degree of vigilance for particularly vulnerable victims of domestic violence. See ValiulienÄ— v. Lithuania , cited above, page 30.

[15] See paragraph 119 of the present judgment.

[16] See paragraph 122 of the present judgment.

[17] Ireland v. the United Kingdom (Plenary), no. 5310/71, § 167, 13 December 1977 .

[18] See paragraph 75 of the present judgment.

[19] UN Committee against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, at 1.

[20] See paragraph 63 of the present judgment, referencing CAT/C/RUS/CO/5, adopted by the UN Committee against Torture on 22 November 2012.

[21] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Human Rights Council Thirty-first session A/HRC/31/57 (2016), at 9.

[22] Ibid, at 8.

[23] For a thought-provoking discussion on domestic violence and its connection to torture, read Isabel Marcus, “Reframing Domestic Violence as Torture or Terrorism”, Collection of Papers No. 67, Faculty of Law, Niš, 2014.

[24] See Osman v. the United Kingdom , no. 23452/94 , § 116, 28 October 1998.

[25] See for example, Opuz v. Turkey , no. 33401/02, § 130, 9 June 2009, and Hajduova v. Slovakia , no. 2660/03, § 50, 30 November 2010.

[26] See ValiulienÄ— v. Lithuania , cited above, at page 30.

[27] See my separate opinion in Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, 11 July 2017.                          

[28] See paragraphs 80, 81 and 131 of the present judgment.

[29] See paragraph 45 of the present judgment.

[30] See paragraph 61 of the present judgment.

[31] CEDAW, Communication No. 91/2015, 6 November 2017.

[32] Ibidem, § 7.8, § 9 (b). See also CEDAW Committee, Concluding observations on the eighth periodic report of the Russian Federation , UN Doc. CEDAW/C/RUS/CO/8, § 22, and Committee against Torture, Concluding observations on the fifth periodic report of the Russian Federation , UN Doc. CAT/C/RUS/CO/5, § 14.

[33] See paragraph 128 of the present judgment, citing Opuz v. Turkey , § 200, cited above; Eremia v. Republic of Moldova , no. 3564/11, §§ 89-90, 28 May 2013; and Talpis v. Italy, no. 41237/14 , § 147, 2 March 2017.

[34] See also the Istanbul Convention, Articles 4 and 62, which reiterate the importance of effective legislation for the prevention, combatting and prosecution of all forms of violence against women.

[35] UN World Health Organization (WHO), Global Status Report on Violence Prevention 2014 , at page 8.

[36] See paragraph 99 of the present judgment.

[37] See paragraphs 120-121 of the present judgment.

[38] CEDAW General Recommendation No. 19: Violence against women, 1992, paragraph 9.

[39] See also the Istanbul Convention, Article 55, and CEDAW General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 16 December 2010, paragraph 34.

[40] See paragraphs 91 and 96 of the present judgment.

[41] UNESC Resolution 1984/14, on violence in the family.

[42] See UN General Assembly Resolution on Domestic violence, 29 November 1985.

[43] Opuz v. Turkey , cited above, §150.

[44] P.M. v. Bulgaria , no. 49669/07, §§ 65-6, 24 January 2012.

[45] CEDAW, A.T. v. Hungary , Communication No. 2/2003, recommendations II(c) and II (f) (2005).

[46] See Article 52 of the Istanbul Convention, as well as the Council of Europe’s Emergency Barring Orders in Situations of Domestic Violence: Article 52 of the Istanbul Convention – A collection of papers on the Council of Europe Convention on preventing and combating violence against women and domestic violence, at 28 (2017).

[47] See paragraphs 82 and 132 of the present judgment. Where there exists clear and convincing evidence that the defendant poses a danger to the victim, pre-trial preventive detention should be available under the legislation on criminal procedure.

[48] See paragraph 128 of the present judgment.

[49] See the Council of Europe’s Gender Equality Commission, Analytical study on the results of the 4 th round of monitoring the implementation of Recommendation Rec(2002) 5 on the protection of women against violence in Council of Europe member states , at 49 (2014).