In Tershana v Albania [2020] ECHR 586; (2021) 72 EHRR 13, the authorities’ failure adequately to investigate an acid attack against a woman amounted to a breach of the procedural obligation under Article 2, justifying damages of €12,000. In some ways, however, the judgment seems to be unsatisfying – citing cases that don’t quite fit the propositions stated and not examining potential breaches of Articles 3 and 14.
The facts
On 29 July 2009, the applicant was subjected to an acid attack, causing her severe physical injuries and consequent psychological injuries, causing her to be unable to work for several years [6].
In the criminal investigation that followed, the applicant stated that she had not recognised the attacker, who was wearing a hat and black sunglasses. She said that she suspected her former husband had organised it as an act of revenge and a continuation of past domestic violence [7]. Members of the applicant’s family stated that the former husband was jealous, had used violence against her and had threatened to kill her if they were to get divorced [10], [13].
Investigators conducted an on-site examination, secured the applicant’s clothes and a glass container containing a small quantity of red liquid. A forensic medical report, fingerprint report on the glass container and chemical toxicology report on the liquid were ordered [17]-[18]. The telephone of the applicant’s former husband was subjected to interception and video footage from video cameras was obtained [22], [27].
Neither the video footage [27] nor the fingerprint report assisted [23]. The chemical toxicology report was not produced due to a lack of necessary specialised equipment to perform the required tests [30] and the body asked to prepare a report on the clothes said that the matter fell outwith its sphere of competence [31].
On 2 February 2010, the investigation was stayed, on the basis that all possible investigative actions had been carried out but that it had not been possible to identify the perpetrator of the offence [34].
Judgment
The Second Section of the European Court of Human Rights noted that the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) had previously stated that acid attacks on women formed part of gender-based violence directed against women [82], requiring a gender-sensitive approach to understand the level of pain and suffering experienced [83].
The facts of this matter fell within Article 2, which was engaged where a person was the victim of an activity or conduct which by its nature put their life at real and imminent risk, and where they suffered injuries that appeared life threatening as they occurred, even if they ultimately survived. Here, the applicant was the subject of a violent attack, resulting in grievous injuries, pain and disfigurement of 25% of her body, where she attended hospital in a critical condition and where her life would have been in danger absent medical aid [132].
There was no breach of the positive duty under Article 2, as articulated in Osman v United Kingdom [1998] ECHR 101; (2000) 29 EHRR 245. The applicant had complained about her former husband’s violence against her for the first time when she made her statement after the acid attack. There was nothing to show that she informed the authorities of any risks posed to her life by her former husband, which would have triggered the positive obligation to take preventative measures or other reasonable steps to protect her life [151]-[152].
There had, however, been a breach of the procedural duty under Article 2, to perform an effective investigation. The court observed that where, as in Albania, there were doubts about the occurrence of domestic violence against women, special diligence was required of the authorities to deal with the specific nature of the violence [153], citing Volodina v Russia [2019] ECHR 539 at [92]. Further, a prompt response by authorities in response to a lethal use of force was essential in maintaining public confidence in adherence to the rule of law and in preventing any appearance of tolerance of unlawful acts, citing Talpis v Italy (2017) 41237/14 at [106] and Da Silva v United Kingdom [2016] ECHR 314; (2016) 63 EHRR 12 at [237].
Here, the former husband’s apartment was searched and several items owned by him were seized. Further investigative steps were taken, comprising on-site examination, questioning of several persons, the obtaining and examination of nearby video cameras and the obtaining of forensic reports [158]. However, the obtaining of an expert report to enable the identification of the substance used to attack the applicant was of crucial importance and was not obtained with due expedition or determination [159]. The criminal investigation was therefore not effective.
The court declined to consider a violation of Article 14 [171]-[172]. It awarded €12,000 non-pecuniary damages.
Commentary
There are a few points in this decision. The first is the reliance on Volodina. That concerned an allegation of domestic violence where there was positive evidence of the applicant’s ex-partner subjecting the applicant to horrific physical and psychological abuse, where the court stated not only that special diligence was required in dealing with domestic violence cases but that the specific nature of the domestic violence had to be taken into account (in the context of an Article 3 case). There is no doubt that the facts of the instant matter – an acid attack on a woman for no apparent reason, fell within the description of acts forming gender-based violence. However, there was no positive evidence that the applicant’s ex-husband was responsible. If the court wished to make the point that this required special diligence in the absence of positive evidence of male violence then it should have stated so outright – rather than citing a case which did not support that proposition.
On a similar note, the Court cited Da Silva for the proposition that a prompt response to lethal force was essential. But Da Silva concerned an investigation into alleged unlawful killing by state agents. It was against that background that Da Silva held that a requirement of promptness and reasonable expedition was explicit “in this context” (of state agent breaches). In turn, the two cases cited in Da Silva for that proposition were Kaya v Turkey [1998] ECHR 10; (1998) 28 EHRR 1 and Yasa v Turkey [1998] ECHR 83; (1999) 28 EHRR 408, both of which concerned the alleged unlawful killing, or murder, of two persons by the Turkish state security forces.
The Court in the instant matter also cited Talpis for this principle, which itself cited Opuz v Turkey [2009] ECHR 870; (2010) 50 EHRR 28 at [150]-[151], itself citing Yasa (mentioned just above) and Cakici v Turkey (2001) 31 EHRR 5 at [80]-[87] and [106]. Cakici concerned the alleged torture and killing of a person by state forces. Although at [86], the Court stated that Article 2 imposed an obligation to investigate breaches committed by non-state agents, that case criticised a failure of the authorities to take any steps to investigate the matter whatsoever, and where the obligation to conduct a prompt investigation was said to arise in the context of Article 5 when a person was taken into state custody and not seen thereafter.
It might also be thought that this was a missed opportunity for the court to analyse this case in terms of Articles 3 and 14. There is no issue that the matter fell within Article 2 – but perhaps the further importance of this case was that the features of the attack, resulting in disfigurement and psychological symptoms might be thought to fall within degrading treatment with long-lasting effects.
Also, there was a failure of the criminal justice system to investigate the matter adequately, and a lack of response to what the court described as the applicant’s “repeated enquiries” [161]. The applicant was effectively silenced by the authorities and disempowered. It would have been interesting to know whether it was male investigators who had failed to ensure that the relevant chemical tests had been completed or who decided that completing them was some other organisation’s job, or male judicial decision makers who were prepared to stay the case. Or, if a male would have been treated in the same way.
The court’s approach to this was to state that insofar as the court had examined the circumstances under Article 2, it did not find it necessary to examine the merits of the Article 14 complaint. It may or may not be of relevance, that of the seven judges hearing this case, six were male.