MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-42

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-42 Levchuk group v. Ukraine (Application No. 17496/19) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)793, DH-DD(2018)8

 

Application	Case	Judgment of	Final on	Indicator for the classification
17496/19	LEVCHUK	03/09/2020	03/12/2020	Urgent individual measures and complex problem
1870/05	IRINA SMIRNOVA	13/10/2016	06/03/2017	Proposal to transfer to the enhanced procedure. Complex problem
45526/08	ZHURAVLEVA	31/01/2019	31/01/2019

Case description

These cases concern principally the authorities’ failure to ensure that the applicants can enjoy their homes free from harassment and violent disturbance (violations of Article 8). More specifically, in Levchuk the applicant and her children had to continue sharing their flat with the applicant’s former husband, the perpetrator of domestic violence, for at least five years after the dissolution of the marriage, owing to the failure by the domestic court to strike a fair balance between the competing interests in the eviction proceedings (§ 90 of the Levchuk judgment). In Irina Smirnova and Zhuravleva, the applicants were forced to cohabit with strangers and had to eventually flee their homes due to harassment and violence from new co-owners of the flats who had obtained property rights without the applicants’ consent. The Court found that the domestic legal framework did not provide the applicants with procedural safeguards for protecting their right to respect for home and private life and that they did not have any meaningful forum in which to raise an argument that a duty to share their home with strangers disproportionately affected their private life and enjoyment of their home (§§ 95-97 and 99 of the Irina Smirnova judgment; § 51 of the Zhuravleva judgment).

In Irina Smirnova the authorities also failed to protect the applicant from repeated verbal harassment and physical violence due to extreme delays in instituting and conducting public criminal proceedings against new co-owners of her flat (violation of Article 3). In respect of similar complaints in Zhuravleva the Court found a violation of Article 8.

Status of execution

The authorities submitted a number of action plans and communications in these cases, most recently on 6 August and 30 September 2021 (see for full details DH-DD(2021)793 and DH-DD(2021)998). A summary of the key points is set out below:

Individual measures

Just satisfaction:

The just satisfaction awarded by the Court in respect of non-pecuniary damage and costs and expenses was paid to all the applicants, except for the Zhuravleva case.

Other individual measures:

In the Levchuk case, following the applicant’s request, the Supreme Court on 16 January 2021 reopened the proceedings concerning her ex-husband’s eviction from their shared flat. The next hearing is scheduled for 8 February 2022. The applicant’s ex-husband no longer resides with her and the authorities submitted that the applicant and her children are not at risk from domestic violence and have not reported incidents of domestic violence in 2020.

The applicant in the Irina Smirnova case did not apply for reopening of the proceedings. The authorities indicated that the applicant’s case file remained on the territory outside control of the authorities and thus it was not possible to establish the identity of police officers who investigated the applicant's complaints ineffectively.

The authorities did not submit any information concerning the execution of the Zhuravleva judgment. Confiscation of the perpetrators’ shares in the applicants’ flats by the State shielded the applicants from the risk of sharing their flats with their former aggressors in future (§ 74 of the Irina Smirnova judgment; § 51 of the Zhuravleva judgment).

General measures

·         Enjoyment of home free from harassment and violent disturbance (Article 8)

(i)  New legislative framework:

In 2018 a new Law against Domestic Violence[1] came into force. It introduced special measures to ensure that victims of domestic violence can safely remain in their homes, in particular:

(a)   an urgent injunctive order issued by the police immediately in case of imminent threat to life or health of victims and for a period of up to ten days; it may impose an obligation upon the perpetrator to vacate the victim’s place of residence and to prohibit the perpetrator from entering it, even in the event the place of residence is shared or co-owned by the victim and the perpetrator;

(b)   a restraining order issued by courts within 72 hours after the request, for a period from one to six months and extendable for another six months; it may prohibit the perpetrator from staying at the place of residence shared with the victim or impose an obligation to eliminate obstacles to the use of property, in particular, co-owned by the victim and the perpetrator.

In addition, amendments to the Code on Administrative Offences and the Criminal Code introduced liability for several new offences related to domestic violence, notably, the failure to comply with an urgent injunctive order (administrative offence), the failure to comply with a restraining order (criminal offence) as well as committing acts of domestic violence (either administrative or criminal offence depending on the exact circumstances). The authorities provided recent statistics on the number of criminal offences of domestic violence registered and the number of individuals prosecuted for this criminal offence in 2019 and 2020. About 13,000 urgent injunctive orders were issued by police rapid response units.

On 21 September 2020 the President’s Decree on prevention and combatting domestic violence[2] provided for a number of organisational and awareness raising measures. In addition, Ukraine joined the Biarritz Partnership for Gender Equality.[3] Other recently introduced measures include the governmental hotline for victims of domestic violence launched in February 2020, creation of shelters, mobile teams of socio-psychological assistance and centres for psychological assistance for victims of domestic violence.

The Interactive map of assistance to victims of domestic violence which accumulates information about relevant services in all regions was created and the Unified state register of cases of domestic violence and gender-based violence is being developed.

On 7 November 2011 Ukraine signed the Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”). In April 2021 the Ministry of Social Policy prepared a draft law on ratification of the Istanbul Convention, which was further submitted for comments to the Ministry of Foreign Affairs.

(ii) Judicial practice concerning evictions

The authorities referred to several recent Supreme Court decisions clarifying the application of Article 116 of the Housing Code (in situations of social tenancy), most importantly, the decision of 21 December 2020. In this case the Supreme Court carried out the balancing exercise relying on the Levchuk judgment, upheld the conclusions of lower courts and found that the interests of the victim of domestic violence who had been the sole owner of the flat prevailed over the perpetrator’s right to reside in the flat and evicted the latter.

·         Delays in the investigation of the criminal cases and failure to protect the applicant from repeated verbal harassment and physical violence (Article 3)

The Code of Criminal Procedure adopted in 2012 introduced safeguards against unlawful refusals to institute criminal proceedings and unlawful decisions to terminate criminal proceedings, in particular, an obligation of the prosecutor or investigator to institute criminal proceedings immediately, and, in any event, no later than 24 hours of suspicion of a criminal offence being brought to their attention.

·         Cooperation activities

In January 2020 the Council of Europe launched the project “Combatting violence against women in Ukraine” (COVAW) under the framework of which a number of trainings and awareness raising events were organised.

·         Publication and dissemination

The judgments in the Levchuk and Irina Smirnova cases have also been translated, published and disseminated to the relevant authorities.

Rule 9 submission

The Ukrainian Women Lawyers Association “JurFem” submitted a communication criticising, inter alia, the delays in executing the Levchuk judgment, the lack of progress in the implementation of the newly adopted legislation related to protection against domestic violence as well as shortcomings in the court practice (see DH-DD(2021)318 and DH-DD(2021)345 for full details).

Analysis by the Secretariat

Joint examination

The Levchuk case concerns the authorities’ failure to ensure that the applicant can enjoy her home free from harassment and violence emanating from her former husband. In the Irina Smirnova and Zhuravleva cases, pending since 2017 and 2019 respectively, the applicants were subjected to harassment and violence in their homes by private individuals residing in the same premises as the applicants. The measures to be undertaken by the authorities in these cases are of similar nature. These two cases are currently examined under the standard procedure. In the absence of any information from the authorities in the Zhuravleva case and in the absence of updates in the Irina Smirnova case since 2017, the Committee may wish therefore to examine them jointly with the Levchuk case at the present meeting as cases raising a complex problem related to violence in the home.

Individual measures

Just satisfaction:

Information on payment is awaited in the Zhuravleva case.

Other individual measures:

In the Levchuk case the authorities should be invited to provide information about the outcome of the pending proceedings before the Rivne Court of Appeal. The applicant and her former husband no longer reside in the shared flat and the applicant has not reported any new incidents of domestic violence recently, therefore there appears to be no imminent risk of domestic violence against her. However, as also underlined in the Rule 9 submissions, the applicant’s former husband remains a co-owner of the flat and the risk of future violence cannot be excluded. The authorities should therefore continue monitoring the applicant’s safety and provide information about the stability of her current living arrangements.

In the Zhuravleva case, no information about the requests for reopening of proceedings, if any, was submitted and the authorities should be invited to provide it.

In the Irina Smirnova and Zhuravleva cases, the Court found that the applicants were forced to abandon their flats and were requesting refuge from various acquaintances. The perpetrators of violence were divested of their shares in the applicants’ flats as a result of the property confiscation orders (§§ 51, 91 of the Irina Smirnova judgment; § 7 of the Zhuravleva judgment), consequently the applicants were protected from sharing their flats with their former aggressors in future and the State obtained these shares. The authorities should provide information about the current legal status of these shares and to confirm that the applicants were restored in their rights to access their homes, should they wish to be.

As regards delays in the investigation of the criminal cases on extortion: despite extreme delays in institution and conducting criminal proceedings against the co-owners of the applicants’ flats and qualifying the charges against them as extortion in Irina Smirnova and Zhuravleva, the perpetrators’ violent conduct
vis-à-vis the applicants was taken into account in the domestic courts’ analysis and the measures adopted by the authorities effectively shielded the applicants from the risk of sharing their flats with their former aggressors in future.[4] While regrettable, the delays can no longer be remedied, and further individual measures do not appear possible in this respect.

General measures

·         Enjoyment of home free from harassment and violent disturbance (Article 8)

(i)  Legislative measures

The Court underlined in these cases that under Article 8 the authorities have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to put in place and apply in practice an adequate legal framework affording protection against acts of violence, including domestic violence, by private individuals.[5] It is positive that the authorities have taken steps to introduce such a framework and align it with Council of Europe standards, in particular by adopting the Law against Domestic Violence and other legislative instruments as well as by establishing a hotline for victims of domestic violence and creating shelters. The statistical data provided, being selective and incomplete, does not allow for a comprehensive evaluation of the impact of such measures in practice.

As regards urgent injunctive orders and restraining orders, they allow the authorities to protect victims by intervening as a matter of urgency in cases defined in the Law against Domestic Violence. However, it is unclear whether such measures are applicable in situations where individuals are not linked by any ties other than co-ownership of property. In addition, further steps to be taken by victims in case of continuing threat of violence after the expiration of the maximum time limit of one year for restraining orders are not evident. The authorities should be invited to provide more information to clarify these issues, including examples of court decisions, applicable guidelines concerning urgent injunctive orders and restraining orders as well as comprehensive statistics regarding implementation/breaches of such orders and sanctions imposed in this respect.

(ii) Judicial practice in civil proceedings concerning evictions of perpetrators of domestic violence and social tenancy issues

The samples of court decisions provided by the authorities, while not numerous, demonstrate a positive tendency in carrying out the balancing exercise by the domestic courts in cases of the social tenancy. To confirm the consistency of the court practice as regards evictions related to domestic violence, the authorities should be invited to provide more samples of the Supreme Court decisions in this respect, in particular, as regards private joint ownership. They should further provide relevant statistical data in this respect.

·         Delays in the investigation of the criminal cases and failure to protect the applicant from repeated verbal harassment and physical violence (Article 3)

In Irina Smirnova the Court found a violation of Article 3 on account of extreme delays in instituting and conducting public criminal proceedings against the co-owners of the applicant's flat.[6] While the obligation under the amended Code of Criminal Procedure to institute criminal proceedings immediately was found to be sufficient in a comparable situation,[7] the complexity of domestic violence cases stems from the need to assess the situation in its entirety, including the risk that similar incidents would continue, and to prevent systematic harassment,[8] as opposed to considering each act of violence or harassment as an isolated incident or a conflict between two equal parties.

To address misconceptions regarding the nature and cycle of domestic violence,[9] additional training measures are necessary for the domestic authorities. The authorities should also be invited to provide more information as regards the current legislative framework (or alternatively as to what actions are envisaged by the authorities to overcome this legislative lacuna) which would allow a swift intervention by the public officials and a response to the repeated and premeditated nature of the verbal and physical assaults in situations similar to those of the applicants. To demonstrate that timely response and effective investigation of claims related to domestic violence are ensured, the authorities should be invited to provide statistical information on the current average length of criminal proceedings in these types of cases.

·         Co-operation with the Council of Europe and other activities

Continued cooperation with the Council of Europe with a view to combating domestic violence and gender-based discrimination should be encouraged. Lastly, the authorities should be invited to explore avenues to strengthen safeguards in this field in line with the Council of Europe standards, including the Council of Europe Istanbul Convention.

Financing assured: YES