Legal summary

May 2023

A.E. v. Bulgaria - 53891/20

Judgment 23.5.2023 [Section III]

Article 3

Positive obligations

Failure to provide adequate protection, in law and in practice, to a child victim of domestic violence: violation

Article 14

Discrimination

Domestic authorities’ failure to adequately address domestic violence against women: violation

Facts – The applicant, who was fifteen years old at the time, claimed that in the evening of 8 September 2019 she had been beaten by her adult boyfriend, D.M. She was examined in an emergency room by a forensic doctor who, in his medical report, concluded that she had suffered traumatic injuries that could have been caused in the manner and at the time she described and had caused her pain and suffering. The social services gave the prosecution service notice that a crime had been committed against a minor, describing the above incident as well as several earlier beatings, and requested that pre-trial criminal proceedings be opened. However, the district prosecutor, after preliminary police checks, refused to do so, finding that only an offence subject to private prosecution, namely minor bodily harm, had been committed and that the legal conditions for prosecutors to exercise their discretionary power to open criminal proceedings had not been met. The applicant’s subsequent appeals were dismissed.

Law – Article 3: The treatment at the origin of the applicant’s complaint had attained the threshold of severity required to engage Article 3. In addition to the physical injuries which had caused her pain and suffering, the applicant had been a minor at the time, arguably in a state of physical and emotional vulnerability and dependent on her alleged aggressor and had been likely to have experienced serious intimidation and distress.

The applicant’s complaint was two-fold: first she complained that the legal framework governing State intervention in cases of complaints of domestic violence was deficient; and, second, that the prosecutors had failed to effectively investigate her specific complaints.

(a) Legal framework – The applicable legal provisions were not fully capable of adequately responding to domestic violence or violence inflicted on victims (minors or otherwise) who were not themselves in a position to initiate and pursue judicial proceedings as private prosecutors.

Firstly, although, on a positive note, under the relevant legal provisions minor bodily harm sustained in the context of domestic violence was prosecuted by the authorities and not left to be prosecuted by the victim, “repeated” or “systematic” acts of violence preceding a complaint in this regard had to be established before the State could step in; according to the domestic case-law that meant no fewer than three violent acts. In the applicant’s case it was held that only a single act of violence had been committed against her. The Court reiterated that domestic violence could occur even as a result of one single incident and consecutive cycles of such violence, often with an increase in frequency, intensity and danger over time, were frequently observed patterns in that context. Accordingly, requiring repeated instances of violent behaviour for the State to intervene, bearing in mind the real risk of new incidents of violence with increased intensity, did not sit well with the authorities’ obligations to respond immediately to allegations of domestic violence and to demonstrate special diligence in that context.

Secondly, the law required lasting cohabitation or a de facto marital relationship which was apparently only present when both victim and offender in a domestic violence context were adults who had lived together more than two years. The applicant had not been considered the victim of an offence committed given she had been a minor and had only stayed at D.M.’s dwelling a few days at a time. Those requirements were hard to justify from the standpoint of States’ obligations under Article 3 in the domestic violence context, as it was bound to filter out a number of cases in which violence was inflicted on a woman by her intimate partner.

Thirdly, the law established a minimum threshold in respect of the gravity of injuries which had to be sustained before a public prosecution could be launched in relation to violence against minors where such violence did not meet the formal requirements of being committed in the context of domestic violence. In such cases, victims of violence who were minors were still expected to be able to bring and maintain charges in court against their aggressors – a situation that could hardly be reconciled with the State’s obligation to adequately deter and effectively combat violence against children.

Lastly, the law left the opening of a criminal investigation and proceedings entirely at the prosecutor’s discretion in exceptional cases of minor bodily harm, otherwise subject to private prosecution, where victims in a state of helplessness or dependence on the perpetrator of the crime were incapable of defending themselves.

Accordingly, the law fell short of the State’s positive obligation to put in place an effective system punishing all forms of domestic violence and providing sufficient safeguards for victims.

(b) Practical application of the legal framework in the instant case – Although, the prosecutors’ reaction to the applicant’s allegations had been based on the applicable legal framework, to establish whether systematic violence had taken place they had had to carry out an investigation. The allegations concerned serious violence which had caused the applicant physical pain and suffering and had left her seriously frightened, indicating thus public interest in prosecution. As such, they had required an appropriate official response, including certain investigative steps (for example, following up on the allegations, questioning the applicant in a special protected facility by specially trained professionals out of the suspected perpetrator’s sight, questioning her friends and looking into D.M.’s criminal history). Despite the police having not taken any such acts, as well as the material detailing the applicant’s claims of repeated beatings and the medical certificate attesting to her injuries and their effects on her, the prosecutor had relied entirely on the preliminary inquiry conducted by the police. The Court could not but find the prosecutor’s failure to act in those circumstances wanting. In addition, the regional prosecutor’s argument that the applicant had refused to undergo a gynaecological examination, was not only inadequate but also insensitive to and disrespectful of her dignity; she had complained of physical, not sexual, violence.

Lastly, on the basis of the case file, the Court considered that the applicant could have been seen as falling into the category of exceptional cases in which prosecutors could have exercised their discretionary power to open criminal proceedings. Yet the prosecutor in her case had failed to act.

(c) Overall conclusion – The authorities had failed to provide adequate protection to the applicant, both in law and in practice. The Government’s non-exhaustion objection (based on the applicant’s failure to pursue private prosecution proceedings), which had been joined to the merits, was therefore rejected.

Conclusion: violation (unanimously).

Article 14 taken in conjunction with Article 3: This was the third case in respect of Bulgaria in which the Court had found a violation of the Convention, stemming from the authorities’ response to acts of domestic violence against women. The information provided by the applicant in the instant case, which included statistics about domestic violence as well as violence against women in society in broader terms, showed specifically that in Bulgaria women were the predominant victims of domestic violence, as well as that violence against women in Bulgaria was the highest in the EU. That statistical material had been sufficient and the applicant had thus made a prima facie case that, by virtue of being a woman victim of domestic violence in Bulgaria, she 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. However, the Government had not shown what specific policies geared towards protecting victims of domestic violence and punishing the offenders they had pursued and to what effect.

As found in the context of Article 3, the relevant legal provisions examined were not capable of adequately responding to domestic violence to which most victims in Bulgaria were women. While it could not be said that Bulgarian law had wholly failed to address the problem of domestic violence, the way in which those provisions were worded and had been interpreted by the relevant authorities was bound to deprive a number of women victims of domestic violence from official prosecution and thus effective protection. The absence of official comprehensive statistics by the authorities could no longer be explained as a mere omission on their part, given the level of the problem in Bulgaria and the authorities’ related obligation to pay particular attention to the effects of domestic violence on women and to act accordingly. In addition, their refusal to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence , (“the Istanbul Convention”) could be seen as indicative of the level of their commitment to effectively fighting domestic violence.

In conclusion, the authorities had not disproved the applicant’s prima facie case of a general institutional passivity in matters related to domestic violence in Bulgaria. As the statistics provided by the applicant showed, for a sustained period of time women have continued to suffer disproportionately from domestic violence. The authorities had not shown that they had engaged adequately with the problem. It was not thus necessary for the applicant to show that she had been individually a target of prejudice by the authorities.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

(See also Bevacqua and S. v. Bulgaria , 71127/01, 12 June 2008; Volodina v. Russia , 41261/17, 9 July 2019, Legal Summary ; Kurt v. Austria [GC], 62903/15, 15 June 2021, Legal Summary ; Y and Others v. Bulgaria , 9077/18, 22 March 2022, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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