Breach of Article 3 where state failed to protect woman from harassment
Ms Smirnova, a retired single woman, lived in a small one-bedroom flat. It had recently been privatised and she had acquired it in equal shares with her adult son, Y. In November 2001, she was visited by two unfamiliar men, VS and AN, who offered to buy half of the flat for US$700. She refused. VS and AN warned her that she would regret her decision, because Y, who lived elsewhere, had offered the other half of the flat as a gift to VS who intended to move into the flat and create intolerable living conditions for her. Shortly after, Y signed a notarised gift deed transferring his title to half of the flat to VS. From November 2002, AN, VS and their acquaintances regularly visited the flat, demanding that she sell it. On numerous occasions they broke the locks, insulted and harassed her and caused damage to her property. AN and VS continuously demanded that Ms Smirnova move out and sell her share. On different occasions:
•AN hit her in the chest, inflicting a bruise and causing soft tissue swelling;
•AN, VS and several strangers broke into the flat and, VS who was irritated by the barking of her dog, kicked her and chased her out. Later, she found her dog’s dead body in a garbage container;
•VS arrived in the flat after 11 pm, opened the balcony door and held it open for some four hours with freezing temperatures outside;
•VS hit her on the head and stomach, inflicting concussion and blunt trauma of the abdominal wall. He also hit Ms Smirnova’s daughter on the head and other parts of the body, inflicting cerebral concussion and bruising of legs and arms. Ms Smirnova received inpatient hospital treatment; and
•VS and AN installed from two to six strangers in the flat. They were mostly young males who behaved in a discourteous way. They organised loud parties; damaged and stole belongings; created insanitary conditions; carelessly used electricity, gas and appliances; and frequently left the entrance door open.
As she was unable to withstand such living conditions and was afraid for her life and limb, Ms Smirnova effectively moved out. AN and VS continued to harass and assault her for several years. Ms Smirnova took unsuccessful court proceedings to rescind her son’s gift deed. In 2004, she instituted civil proceedings seeking the dispossession of VS and AN. After a number of appeals, that claim was, in the main, unsuccessful. On numerous occasions between 2002 and 2007 Ms Smirnova complained to the local police. On various dates, police officers came to the flat in response to her calls for help, but refused to institute criminal proceedings. However, in July 2007 the regional police instituted criminal proceedings following a complaint of extortion lodged by another woman who had been forced to abandon her flat. They joined Ms Smirnova’s complaints concerning extortion to those criminal proceedings. As a result, AN and VS were arrested and placed in custody. In 2012 all the defendants were found guilty of extortion. They were sentenced to eleven and ten years’ imprisonment. The court ordered the confiscation of all their personal property and awarded Ms Smirnova 35,273.47 Ukrainian Hryvnia (UAH) in pecuniary and UAH 30,000 in non-pecuniary damage for the harassment. She complained to the ECtHR that the state authorities had failed to protect her physical and psychological integrity, home and private life from serious intrusions.
The ECtHR reiterated that the obligation of governments under Article 1 to secure to everyone within their jurisdiction the rights and freedoms defined in the ECHR, taken together with Article 3, which provides ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, requires states to put in place effective criminal-law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. Although state authorities may not be expected to set in motion the criminal law machinery in every case where neighbours, household members or other individuals engage in trivial disputes and seek to settle an ongoing personal conflict by involving the criminal justice authorities, it is important that measures of effective protection against domestic violence and other types of harassment are put in place for vulnerable persons, including reasonable steps to prevent likely ill-treatment. Where an individual makes a credible assertion of having been subjected to repeated acts of domestic violence or other types of harassment, however trivial the isolated incidents might be, it falls on the domestic authorities to assess the situation in its entirety, including the risk that similar incidents would continue. This assessment should, above all, take due account of the psychological effect that the risk of repeated harassment, intimidation and violence may have on the victim’s everyday life. Where it is established that a particular individual has been systematically targeted and future abuse is likely to follow, apart from responses to specific incidents, the authorities may be called upon to implement an appropriate action of a general nature to combat the underlying problem. In this case, the court noted the repeated and premeditated nature of the verbal and physical assaults over several years. Some instances of violence, resulting in injuries were very serious. The repeated physical and verbal attacks caused Ms Smirnova profound mental suffering, distress and constant fear for her life and limb. This suffering was aggravated because the violence and harassment occurred in the privacy of her home. That prevented any outside help. The treatment, to which she was subjected, reached the threshold of severity falling within the ambit of Article 3. It engaged the state’s positive duty under Article 3 to put in motion the protective legislative and administrative framework. Although the principal miscreants were eventually prosecuted and sentenced to significant prison terms, it took the state authorities over twelve years to resolve the matter. There was accordingly a violation of Article 3. The ECtHR also found a breach of Article 8. It awarded €4,000 in respect of non-pecuniary damage.