JOINT DISSENTING OPINION OF JUDGES SCHEMBRI ORLAND, KTISTAKIS AND DERENČINOVIĆ

1. This case concerns the revocation of a precautionary restraining order (RO) within the context of criminal proceedings which were still ongoing for multiple serious criminal offences of domestic violence. The applicant, the alleged victim of the spousal abuse, complained that the termination of the restraining order was in breach of her right, inter alia , to the protection of her personal (physical) integrity as guaranteed by Article 8 of the Convention. She further complained that it was not possible for her, as a victim, to challenge the termination of the RO before the domestic courts.

2. We are regrettably unable to share the reasoning and analysis of the majority in this case, as we are of the opinion that the facts merited a finding of a violation of Article 8 of the Convention.

3. It seems that, in general, the risk assessment standards established by the Court were not followed by the domestic courts either in granting (and extending) the RO or in the decision on its termination. In the context of the positive obligation to protect the victims of domestic violence, the failure of the authorities to conduct an autonomous, proactive and comprehensive risk assessment prior to the termination of the RO resulted in the victim being placed at imminent risk of recurring violence by the defendant.

4. The fact that the accused husband was ultimately acquitted of the charges (some of the charges became time-barred) should not detract from the rigorous scrutiny which the State authorities are obliged to conduct, taking due account of the particular context of domestic violence, of the risk of a recurrence of violence for the alleged victim in real time. The outcome of the proceedings and the acquittal of the defendant are of no relevance here because risk assessment as an element of the obligation to protect is not an obligation of result but one of means (see, for instance, Volodina v. Russia (no. 2) , no. 40419/19, 14 September 2021).

5. The circumstances of this particular case point to the applicant’s particular vulnerability as an alleged victim of domestic violence, including marital rape, sexual abuse and threats with the use of a firearm, by her husband who was also a policeman. The RO was issued consequent to the filing of an indictment against N.M. and after he had been in detention for eleven months. N.M. was prohibited from approaching the applicant within fifty metres and from making or maintaining direct or indirect contact with her, and from approaching her place of residence within one kilometre. The RO did not represent, in itself, an extreme measure that would seriously interfere with the defendant’s freedom of movement.

6. In terms of Croatian law, the charges were serious enough to merit prosecution under the Criminal Code for several serious criminal offences, rather than under the Domestic Violence Act, which concerns misdemeanours. Furthermore, the Code of Criminal Procedure provides that precautionary measures may be kept in place for as long as they are necessary and until the judgment (in criminal proceedings) becomes final or until the final judgment becomes enforceable (this applies to the restraining order). This is not to say that the termination of a precautionary measure may not be justified prior to conclusion of the proceedings, provided that a proper risk assessment is carried out, involving a comprehensive weighing of the interests of the victim and the accused. Moreover, the Supreme Court, in its decision extending the RO, emphasised that the application of precautionary measures required a different degree of reasonable doubt, which had been confirmed by the indictment, whereas the courts were precluded from further assessing the facts or the criminal liability of the accused.

7. The final extension of the RO was ordered on 14 March 2016 and upheld by the Supreme Court on 8 April 2016. The County Court relied on the number and seriousness of the criminal offences with which N.M. had been charged, the manner of their committal, including the use of firearms, the duration of the offending conduct and the consequent determination N.M. had shown in his violent behaviour towards the applicant. The court also pointed out that N.M. had allegedly threatened the applicant’s life even after their marriage had ended, requesting her to withdraw her criminal complaint and reiterating that nobody would believe her accusations since he was a police officer.

8. Three months later, on 8 July 2016, the Pula County Court terminated the restraining order imposed on N.M., employing the following stereotypical reasoning (see paragraph 30 of the judgment):

“... taking into account the time which N.M. had spent in investigative detention, ... i.e. from 3 April 2013 until 12 March 2014, as well [as] the fact that the restraining order was implemented from 12 March 2014 ... and was last extended by a ruling of 14 March 2016, i.e. that it had been applied for over two years, during which period [N.M.] did not [violate the said order], in view of all of the above ..., it is considered that there is no longer any need to apply [the restraining measures] ...”

9. The Court noted that each time the courts had prolonged the restraining order they had used the same stereotypical reasoning, whereas in contrast, when assessing the necessity of maintaining the restraining order imposed on N.M. the competent court, after a long time, had performed a fresh assessment of the risk to the applicant’s physical integrity, taking into account solely the passage of time. Furthermore, at the material time there had been no further proven acts of violence by N.M. towards the applicant for about three and a half years. Moreover, all of the applicant’s allegations concerning any further threats and intimidation had been followed up in a timely manner and ultimately dismissed by the relevant authorities.

10. The Court therefore concluded that in the present case, given that N.M. had been either in detention or prohibited from approaching the applicant for a total of about three and a half years, during which he had not breached that prohibition, the domestic court’s decision to lift the restraining order when it did was not unreasonable or manifestly disproportionate in the circumstances.

11. Basically, therefore, the Court considered that the termination of the RO was justified on the basis that the decisions prolonging it had been repetitive, the accused had demonstrated good behaviour whilst in detention and whilst the RO was in effect, and the passage of time constituted evidence of a proper risk assessment that weighed up adequately the interests of the accused and of the victim.

12. Even a cursory appraisal of the basis of the termination decision would demonstrate that not only was the revocation of the order based on irrelevant considerations, but that the interests of the victim were not taken into account, let alone formed part of the balancing exercise that the courts were obliged to undertake.

13. Good behaviour, as in not breaching an effective protection order in relation to the victim whilst that order is in place or whilst in detention, is not relevant in itself when assessing the risk of future danger. A breach of a protection order entails sanctions, and no further investigation was undertaken to determine whether the accused might foreseeably present a risk once the protection order was no longer in place. Furthermore, it is reasonable to assume that the “good behaviour” of the defendant was the logical consequence of the application of the RO.

14. As for the passage of time, a protective measure cannot be subject to revocation merely because of the duration of the principal (criminal proceedings). This is as dangerous for the victim as it is illogical. Really, why should the victim have to suffer as a result of the inefficiency of the criminal justice system and why should the defendant, regardless of the presumption of innocence, benefit from it? We note with concern that in this case some of the charges were dismissed owing to the expiry of the statute of limitations: the length of the proceedings in the present case is in contravention of the obligation to investigate and adjudicate in cases of domestic violence without unnecessary delays. It is paradoxical that in a case which concerns the obligation to protect, the domestic authorities were more focused on the psychological and psychiatric assessment of the victim than of the defendant.

15. In particular, while we do not wish to call into question the possibility of terminating precautionary measures owing to the passage of time or on account of the good behaviour of the person on whom they were imposed, in our view this was insufficient in the present case. The decision by the authorities as to which operational measures to take in a particular case inevitably requires a careful weighing of the competing rights at stake (see Kurt v. Austria [GC], no. 62903/15, § 182, 15 June 2021), yet no such weighing had been done by the domestic court. Moreover, bearing in mind that the aim of precautionary measures is to forestall the recurrence of domestic violence (see Volodina , cited above), a mere finding that the accused had obeyed the law for a certain period of time, without a comprehensive analysis of the risks the alleged victim continued to live with, was incompatible with the States’ duty to take into consideration the vulnerability of the victims of domestic violence when discharging their positive obligations under Article 8 of the Convention (see, mutatis mutandis , Levchuk v. Ukraine , no. 17496/19, § 87, 3 September 2020).

16. This was not therefore – contrary to what is asserted in the judgment – “an assessment of risk that was autonomous, proactive and comprehensive”. Indeed, the competent court only weighed the interests of the accused and gave no consideration to relevant factors such as the gravity of the charges or the circumstances of the alleged offences and their repetition. The passage of time and good behaviour do not absolve a reviewing court from a proper reassessment addressing the issue why the reasons previously adduced are no longer existent. Neither was any consideration given to the fact that the criminal proceedings were still ongoing and still at the evidentiary stage. In essence, no investigation, assessment or reasoning was undertaken as to why the lethality factors which had justified maintaining the order no longer applied. In a nutshell, the domestic court gave no convincing argument as to why, if at all, it considered that the danger to the applicant had ceased to exist in the context of the specific dynamics of a domestic violence situation.

17. Moreover, nothing in the case file indicates that the authorities heard any relevant witnesses, such as for instance any social workers who may have been involved in the case, or sought to obtain any other evidence so as to explain how the relevant situation had changed between March 2016, when the precautionary measure had last been prolonged for very serious reasons, and 8 July 2016, when it was terminated on the sole ground that N.M. had complied with the measure for a certain amount of time. In fact, the only evidence adduced in the parallel criminal proceedings during that period was an expert opinion concerning the applicant finding that she suffered from an unspecified type of personality disorder (see paragraph 29 of the judgment). The Court did not see, nor did the domestic court explain, whether and how such a report could have had any bearing on the latter’s decision on the precautionary measure.

18. Finally, in cases of domestic violence, which because of their sensitivity are examined by the national courts under special judicial procedures, the Contracting States are obliged to provide a coherent national mechanism for the judicial review of restraining orders. This obligation on the State was not observed in the present case: the Supreme Court upheld the RO on 8 April 2016 and the lower court decided, only three months later, to terminate it on the basis of stereotypical reasoning, without new facts, as set out above.

19. In conclusion, we consider that in view of the evidence that was, or should have been, available to the domestic authorities at the material time a number of significant lethality factors were sufficiently discernible which were considered when the RO was granted and extended but ignored when the protective measure was lifted. Such a conclusion begs the question whether a seriously flawed risk assessment can nevertheless lead to adequate protective measures in some factual scenarios.

20. The failure of the authorities to conduct an autonomous, proactive and comprehensive risk analysis in this case points to a deeper structural problem. In this regard, we refer to the cases concerning Croatia, in which similar issues (the obligation to protect a victim of domestic violence) were assessed by the Court. Notwithstanding the fact that the awareness of the relevant actors within the system as to the importance of the risk assessment has improved over the years, there still seems to be room for substantial improvement of the system for the prevention and punishment of domestic violence in Croatia.