Failure to prosecute violent husband is breach of human rights
By:1 commentJuly 13, 2017
I’ve reported here upon a number of European Court of Human Rights (ECHR) cases in which the applicant complains of the failure of their national authorities to uphold their rights. The most common scenario has been in relation to the failure, or alleged failure, to deal with a father’s application for contact with his children – see, for example, this case. The recent case of Z.B. v Croatia, however, deals with a different scenario: the failure to prosecute and punish the alleged perpetrator of domestic violence. The case is a useful reminder of the obligations of all states, including the UK, in this important area.
The facts in Z.B. v Croatia were that on the 3rd May 2007 the applicant wife lodged a criminal complaint with the Croatian police, alleging that in the previous two years she had been the victim of multiple acts of domestic violence by her husband. The matter was investigated, and the husband denied the allegations. Notwithstanding this, he was charged with offences of domestic violence, and subsequently convicted in April 2009. He was sentenced to seven months imprisonment, suspended for two years.
What happened next is quite remarkable. The husband appealed against the conviction, on the grounds that all the relevant facts of the case had not been established. His appeal was upheld, the conviction was quashed, and the case was remitted for re-hearing. At the re-hearing the husband was again convicted, and again sentenced to seven months imprisonment, suspended for two years. However, the husband once again appealed, on the grounds that there were some relevant facts that still needed to be established. Again, the appeal was successful, the conviction was quashed once more, and the case was remitted for re-hearing. This time, however, the re-hearing did not proceed, as the statute under which the husband had originally been charged had by then (2013) been abolished, and therefore further proceedings against the husband were barred. The wife was not even able to institute proceedings herself, as all the relevant statutory limitation periods had expired.
The wife applied to the ECHR, complaining of a failure of the domestic authorities to effectively discharge their obligations in relation to the acts of domestic violence allegedly perpetrated against her, and relying, interestingly, not just upon Article 8 of the European Convention of Human Rights (right to respect for family life), but also Article 3, the right not to be subjected to torture or to inhuman or degrading treatment or punishment. In the event, however, the ECHR only dealt with the complaint under Article 8.
As the title to this post indicates, the ECHR found in favour of the wife. I don’t need to go into the details, which relate specifically to Croatian law, but basically whilst it was correct that the husband could no longer be prosecuted under the original statute, the Croatian authorities had failed to consider reclassifying the charges under the statute that replaced it. The authorities had thereby brought about a situation in which the circumstances of the alleged domestic violence against the wife were never finally established by a competent court of law, resulting in the husband’s virtual impunity. The judgment concluded:
“In the Court’s view, the conduct of the domestic authorities in the present case, together with the manner in which the criminal-law mechanisms were implemented, were defective to the point of constituting a breach of the respondent State’s positive obligations under the Convention concerning the applicant’s allegations of domestic violence. The Court therefore finds that there has been a violation of Article 8 of the Convention.”
The wife was therefore awarded damages of 7,500 Euros, plus costs.
Now, obviously the exact scenario that occurred in this case is unlikely to be repeated in this country. However, it is highly possible that the Crown Prosecution Service could choose not to prosecute in a case in which they should have taken action. Such a decision may amount to a breach of Article 8, or even Article 3. (Of course, all domestic remedies must be exhausted before an application can be made to the ECHR).
The full report of Z.B. v Croatia can be found here.
Photo of the Croatian flag by Nikolaj Potanin via Flickr under a Creative Commons licence
July 13, 2017
Categories: Family Law