Domestic violence. The state must intervene directly, investigate and protect the victims
JUDGMENT
Talpis v. Italy 2-3-2017 (no. 41237/14)
SUMMARY
Domestic violence. Inaction by the authorities to take measures for the abusive spouse. The death of the son and the physical abuse of the spouse. The authorities did not even evaluate the risks that Mrs Talpis was likely to face, including the risk of further physical assault. They did not immediately take action on the complaint, so the national authorities had deprived the complaint of any result, creating a state of impunity that favored the repetition of acts of violence by her husband. Infringement of Articles 2 and 3 of the ECHR.
PROVISIONS
Article 2
Article 3
PRINCIPAL FACTS
The applicant, Elisaveta Talpis, is a Romanian national who was born in 1965 and lives in Remanzaccio (Italy).
On 2 June 2012 Ms Talpis complained to the police that her husband (A.T.), who was an alcoholic, had beaten her and her daughter. On arriving at the scene, the police officers found A.T. in the street in a drunken state and recorded the injuries sustained by Ms Talpis and her daughter in their incident report. Ms Talpis did not lodge a formal complaint and decided to hide in the cellar.
On 19 August 2012 Ms Talpis was once again attacked by her husband with a knife, forcing her to follow him in order to have sexual relations with his friends. She asked a police patrol in the street for help; the officers fined A.T. for carrying a prohibited weapon and invited Ms Talpis to go home.
She then went to the hospital accident and emergency unit, where doctors noted a head injury and multiple lesions to her body, and told her that the injuries would probably heal up within a week.
She was then taken in by a welfare association for female victims of violence for three months, after which she had to leave for lack of available space and resources. According to Ms Talpis, she subsequently slept in the street, was accommodated for a time by a friend, and finally found a job as a care assistant and was able to rent a flat. A.T. continued to exert psychological pressure on her, in particular by telephone.
On 5 September 2012 Ms Talpis lodged a complaint for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children. On 4 April 2013 she was questioned for the first time by the police and she modified her statements, mitigating the allegations. In August 2013 the complaint file concerning the allegations of ill-treatment of the family and threats of violence was closed. In October 2015, however, A.T. was fined 2,000 euros (EUR) for having caused actual bodily harm.
On 25 November 2013 Ms Talpis once again called the police concerning an argument with her husband, who was taken to hospital in a state of intoxication. After his discharge from hospital, A.T. was asked for his identity papers at around 2.25 a.m. as he was walking along the street in a drunken state. He was given an on-the-spot fine and allowed to go home. At around 5 a.m., armed with a kitchen knife, A.T. entered the family apartment and attacked Ms Talpis. He stabbed his son, who had tried to separate his parents and who died of his injuries. A.T. also stabbed Ms Talpis in the chest several times as she was attempting to escape. In January 2015 A.T. was sentenced to life imprisonment for the murder of his son and the attempted murder of his wife, for carrying a prohibited weapon and for the ill-treatment of Ms Talpis and her daughter. He was also ordered to pay Ms Talpis damages.
THE DECISION OF THE COURT
Article 2 (right to life)
The Court noted that Article 2 of the Convention was applicable in respect of Ms Talpis’ deceased son and of Ms Talpis herself, the latter having suffered acts which, by their very nature, had endangered her life. Given that the applicant had lodged a criminal complaint on 5 September 2012, the Court considered it necessary to assess the conduct of the authorities as of that date.
After Ms Talpis had lodged her complaint concerning the violence inflicted by her husband and mentioning her concern for her daughter’s and her own lives, the domestic authorities had failed to issue any kind of protection order, and Ms Talpis had not been questioned until seven months after lodging her complaint. That delay had inevitably deprived the applicant of the immediate protection required by the situation. The national authorities should have taken account of Ms Talpis’ situation of great insecurity and moral, physical and material vulnerability, assessed that situation accordingly, and provided her with appropriate support, which they had failed to do. Nor had the authorities conducted an assessment of the risks facing Ms Talpis, including the risk of further physical assault.
By failing to take prompt action on the complaint, therefore, the domestic authorities had deprived that complaint of any effect, creating a situation of impunity conducive to the recurrence of the acts of violence committed by Ms Talpis’ husband. Furthermore, the situation of impunity had ultimately led to the tragic events of the night of 25 November 2013. Even though the police had intervened twice during that night, they had taken no particular action to provide Ms Talpis with appropriate protection in the light of the seriousness of the situation, at a time when the violent conduct of the applicant’s husband had been known to the police and a prosecution for serious bodily harm had been under way. In view of the possibilities available to the police for real-time checks on the criminal record of Ms Talpis’ husband, the Court considered that the police should have known that he posed a real threat to Ms Talpis, the imminent execution of which threat could not have been ruled out. Consequently, the competent authorities had failed to take the action which, rationally, would no doubt have prevented the materialisation of a real risk to the lives of Ms Talpis and her son. They had therefore lacked the requisite diligence and failed in their obligation to protect the lives of Ms Talpis and her son. These failures had, moreover, rendered nugatory Ms Talpis’ criminal complaint.
The Court therefore found a violation of Article 2 of the Convention.
Article 3 (prohibition of inhuman or degrading treatment)
The Court considered that Ms Talpis could be considered as belonging to the category of “vulnerable persons” entitled to State protection2, noting that the violence inflicted, including bodily harm and psychological pressure, had been sufficiently serious to qualify as ill-treatment within the meaning of Article 3 of the Convention.
The Court pointed out that in the judicial treatment of cases of violence against women, the national authorities had to take account of the victim’s situation of particular insecurity and moral, physical and/or material vulnerability, and to assess that situation accordingly, as promptly as possible. In the present case it noted that there was no plausible explanation for the authorities’ inertia for such a long period – seven months – before instigating the criminal prosecution. Nor was there any reason why the criminal proceedings for serious bodily harm should have taken three years. In the Court’s view, the manner in which the domestic authorities had conducted the criminal proceedings in the present case also pointed to the same judicial passivity and fell short of the requirements of Article 3 of the Convention.
The Court therefore found a violation of Article 3 of the Convention.
Article 14 (prohibition of discrimination) in conjunction with Articles 2 and 3
The Court reiterated that under its case-law, the State’s failure to protect women against domestic violence breached their right to equal protection of the law and that that failure did not need to be intentional3. In the instant case Ms Talpis had suffered violence on several occasions, a state of affairs of which the authorities had been aware. Yet they had not conducted any investigations for seven months after the complaint or taken any steps to protect her. Ms Talpis’ husband had been convicted of serious bodily harm three years later (on 1 October 2015), that is to say after the death of Ms Talpis’ son and the attempted murder of Ms Talpis herself. The authorities’ inertia in the present case had been particularly blatant in that the prosecution had asked the police, who had been inactive for six months, to take immediate action on Ms Talpis’ request for protective measures. The Court held that the combination of all the above-mentioned factors showed that by underestimating, through their inertia, the seriousness of the violence in question the Italian authorities had essentially endorsed it. Ms Talpis had therefore been the victim, as a woman, of discrimination contrary to Article 14 of the Convention.
The Court noted that the findings of the United Nations Special Rapporteur on violence against women, its causes and consequences, following his visit to Italy in 2012, those of the Committee for the Elimination of Discrimination against Women, and those of the National Bureau of Statistics, showed the extent of the problem of domestic violence in Italy and the concomitant discrimination against women. Consequently, the Court considered that Ms Talpis had provided evidence of that phenomenon, substantiated by undisputed statistical data demonstrating, first of all, that domestic violence primarily affected women and that despite the reforms implemented a large number of women were being murdered by their partners or former partners (femicide), and, secondly, that the socio-cultural attitudes of tolerance of domestic violence were alive and well.
The Court accordingly held that the violence inflicted on Ms Talpis should be considered as being grounded on sex and that it consequently amounted to a form of discrimination against women. It therefore found a violation of Article 14 of the Convention combined with Articles 2 and 3.
Just satisfaction (Article 41)
The Court held that Italy was to pay Ms Talpis 30,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.
Separate opinions
Judge Eicke expressed a partly concurring and partly dissenting opinion. Judge Spano expressed a partly dissenting opinion. These opinions are annexed to the judgment.
