Acid attack on a woman. Failure of the authorities to conduct an effective investigation. Violation of the procedural aspect of the right to life

JUDGMENT

Tërshana v. Albania 04.08.2020 (app. no. 48756/14)

see here

SUMMARY

The case concerned an acid attack on the applicant in 2009. She suspected that her former husband,
whom she accused of domestic violence, was behind the attack.

The Court found in particular that the State could not be held responsible for the attack. If it had
been aware of a risk to the applicant, it would have been its duty to take preventive measures. In the
present case, however, the national authorities had only found out about the violent behaviour of
the applicant’s former husband after the incident.

On the other hand, the investigation into the attack, which had had the hallmarks of gender-based
violence and therefore should have incited the authorities to react with special diligence, had not
even been able to identify the substance thrown over her. The investigation was moreover stayed in
2010, without identifying the person responsible, and the applicant has not been given any
information about its progress since, despite her repeated enquiries. The Court could not accept in
such circumstances that the authorities’ response to the acid attack had been effective.

PROVISION

Article 2

PRINCIPAL FACTS

The applicant, Dhurata Tërshana, is an Albanian national who was born in 1984 and lives in Tirana
(Albania).

On 29 July 2009 Ms Tërshana was walking along a street in Tirana with some colleagues when an
unidentified assailant threw acid over her. She was taken to hospital in a critical condition, suffering
with 25 per cent burns to her face and upper body. Soon after the attack, she went to Italy for
specialist treatment, undergoing at least 14 operations between 2009 and 2012. She suffers from
anxiety and psychological problems and is afraid to go back to Albania.

The prosecuting authorities immediately opened an investigation into the attack. Ms Tërshana gave
a statement, saying that she did not recognise her assailant but suspected that the attack had been
organised by her former husband, E.A., who had been violent towards her and threatened to kill her
in the past.

E.A.’s apartment was searched and several items were seized, including two knives. He was arrested
for producing and illegally possessing weapons. However, the district prosecutor later discontinued
the criminal investigation against him, finding that the knives were only for ornamental use and
therefore no criminal offence had been committed.

Other investigative steps were also undertaken: in particular, an on-site examination was carried
out, Ms Tërshana’s and E.A.’s families were questioned, footage was obtained and examined from video cameras of two banks near to where the attack had occurred, forensic reports were obtained, and other expert reports were ordered to identify the fingerprints on the container used to throw the liquid over the applicant and the substance found in it and on her clothes.

The investigation was suspended in February 2010, without being able to identify the substance
used in the attack or the perpetrator. Ms Tërshana has repeatedly enquired about the progress of
the investigation since then, to no avail. The most recent information available on the case is that it
is in the hands of the police and currently ongoing.

In 2013 the courts discontinued proceedings regarding a claim for damages against the State
because neither Ms Tërshana nor her lawyer had appeared at a hearing on the case.

THE DECISION OF THE COURT…

Article 2

The Court pointed out that a State’s duty under the Convention to take preventive measures to
protect an individual whose life was at risk should not impose an impossible or disproportionate
burden on the authorities. Indeed, the Court could not see how the Albanian authorities could be
held responsible for not preventing the attack on the applicant.

First, it looked at the legislative framework in Albania concerning crimes against life and health at
the time of the attack and was satisfied that it was effective. The Criminal Code at the time provided
for a number of offences against a person’s life or health which had to be investigated by the
prosecuting authorities of their own motion. The prosecution had moreover opened the criminal
investigation into the attack on the applicant under such criminal-law provisions, namely Article 88
of the CC, which provided that causing serious intentional injury resulting in disfigurement was to be
punished by up to 10 years’ imprisonment.

Secondly, it found that the authorities could not have known of a real and immediate risk to the life
or physical integrity of the applicant because she had at no time before the attack brought to the
authorities’ attention that she was in any danger. She had complained about her former husband’s
violence against her for the first time when she had made the statement before the district
prosecutor, that is, after the acid attack on 29 July 2009.

There had therefore been no violation of Article 2 of the Convention with regard to the authorities’
positive obligation to protect the applicant’s life and physical integrity.

The Court then went on to reiterate that there should be some form of effective official investigation
when there was reason to believe that an individual had sustained life-threatening injuries in
suspicious circumstances. Such an investigation should be capable of establishing the cause of the
injuries and identifying those responsible with a view to their punishment.

Furthermore, when an attack had occurred in a general climate of leniency towards those
responsible for violence against women, as the Court found to be the case in Albania at the relevant
time, it was all the more important that the authorities reacted with special diligence and conducted
a thorough investigation.

Nevertheless, although several investigative measures had been taken, the authorities had at no
point been able to identify the substance used to attack the applicant. No chemical or toxicological
expert report had been obtained owing to a lack of necessary specialist equipment and issues of
competence. The Court could not accept that a measure of such crucial importance for the case had
not been carried out with due expedition and determination.

That state of affairs, coupled with the fact that the applicant was not given any information about
progress in the investigation despite repeated enquiries, could not be described as an effective
response by the authorities to the acid attack.

There had therefore been a procedural violation of Article 2.

Other articles

Given the above findings, the Court held that it was not necessary to examine the merits of the
applicant’s complaints under either Articles 13 or 14.

Just satisfaction (Article 41)

The Court held that Albania was to pay the applicant 12,000 euros (EUR) in respect of non-pecuniary
damage and EUR 2,720 in respect of costs and expenses.