The European Court of Human Rights in Strasbourg issued a decision in the case of A.S.E against Bulgaria (A.S.E v. Bulgaria; complaint no. 53891/20), in which the Network for Legal Aid of the NMD participated as a third party – an intervener.
The case concerns a minor girl of Bulgarian origin who was a victim of violence by her partner. The complainant, represented by lawyer Natasha Dobreva (a member of our Network for Legal Aid), alleges violations by the Bulgarian state of Article 3 (prohibition of torture) of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”), both individually and in conjunction with Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination). The complainant argues that the applicable legal framework was insufficient to protect her, as the acts of violence in her case – choking and bruises inflicted by her 23-year-old boyfriend using fists and kicks – did not qualify as moderate or severe bodily harm within the meaning of the law (Articles 128 and 129 of the Criminal Code), but rather constituted minor bodily harm (Article 130) and therefore were classified as a private offense, pursued by complaint of the victim. The complainant also asserts that, in the specific context of her situation – as a victim of domestic violence, a minor (having just turned 15 during the violence), and a girl – the prosecutor’s office’s refusal to investigate the allegations of violence against her violated the authorities’ procedural obligations under the Convention.
Today, on 23 May 2023, the European Court of Human Rights rendered a decision, respecting the complaint, finding a violation of Article 3 of the ECHR and Article 14 in conjunction with Article 3 of the Convention, and awarding the complainant compensation of 10,000 euros.
In its reasoning, the ECtHR points out that “in the context of domestic violence, the possibility of initiating private prosecution is not sufficient, as such proceedings obviously require time and cannot prevent the recurrence of similar incidents” (see Bevacqua and S. and J.I. v. Croatia, no. 35898/16), and “private prosecution places an excessive burden on the victim of domestic violence, shifting onto her the responsibility for gathering evidence capable of establishing the guilt of the perpetrator in accordance with the standard of proof in criminal proceedings” (see Volodina). The Court in Strasbourg further adds that “the prosecutor’s assessment that criminal investigation cannot be initiated unless the injuries inflicted on the victim have a certain degree of severity also raises questions about the effectiveness of protective measures, given the many existing forms of domestic violence, not all of which result in physical harm, for example, psychological or economic violence.”
By endorsing the arguments put forward by lawyer Dobreva and the position of the Network for Legal Aid of the NMD, the ECtHR finds that domestic violence may arise even as a result of a single incident (see Volodina), contradicting the current requirement under the Domestic Violence Protection Act for systematicity (i.e., at least three acts). The Court notes that “the requirement of a certain number of repeated instances of violent behavior for state intervention, given the real risk of new cases of violence with increased intensity, is not in line with the authorities’ obligations to respond promptly to allegations of domestic violence and demonstrate special diligence in this context.”
Furthermore, the Court establishes that the interpretation of the law as requiring cohabitation (the victim and the perpetrator being spouses or in a de facto marital cohabitation) and the legal requirement for both parties to be adults and to have lived together for more than two years, “are difficult to justify in view of the states’ obligations under Article 3 of the Convention in the context of domestic violence.”
The ECtHR positively evaluates the provision of Article 49 of the Bulgarian Code of Criminal Procedure (CCP), according to which, in exceptional cases when the victim of a crime, pursued by the victim, cannot protect their rights and legitimate interests due to a helpless state or dependence on the perpetrator of the crime, the prosecutor may initiate criminal proceedings ex officio. However, at the same time, the Court points out that “raising such charges is entirely left to the discretion of the prosecutor, who is not legally obliged to initiate criminal prosecution in such cases.”
Based on this reasoning, the Court in Strasbourg concludes that “the law does not meet the positive obligation of the state to establish an effective system punishing all forms of domestic violence and providing sufficient procedural guarantees for the victims.”
We congratulate lawyer Natasha Dobreva from the Network for Legal Aid of the NMD and continue to advocate for changes to the Domestic Violence Protection Act.