In 2022, the European Court of Human Rights issued some significant judgments against Italy relating to domestic violence and the prevention of femicide, as well as on the procedural aspects of prosecuting sexual violence agains children.

Landi v. Italy: feminicide, but no gender-based discrimination

In the Landi case (application no. 10929/19, judgment of 7 April 2022), the applicant complained of a violation of Articles 2 and 14 ECHR due to the failure of the competent national authorities to adopt the necessary measures to protect her life and that of her children following the domestic violence inflicted on them by her partner, culminating in the murder of their one-year-old son and attempted murder of the applicant. Between 2015 and 2018, the applicant had filed several complaints against her partner (although she later withdrew almost all of them), as she had been the victim of assault four times. Furthermore, the partner had already been convicted of assaults against his ex-partner. The European Court of Human Rights (ECtHR) had to assess whether the Italian authorities had taken all necessary measures, in a consolidated context of reiterated domestic violence, to prevent future violations. The Court noted that following the assaults suffered by the applicant and the related complaints filed in 2015, 2017 and 2018, respectively, despite the timely interventions of the Carabinieri, who in turn reported the man's dangerous behaviour to the authorities, as he suffered from severe mental health problems, the public prosecutor's office did not deem it necessary to initiate any investigation in the first two episodes. In 2019, although initiating criminal proceedings, the prosecutor's office neither heard the applicant nor ordered protective measures regarding her. The Court found that the prosecutors did not act with the necessary diligence to respond timely to the allegations of domestic violence and failed to carry out an independent and proactive risk assessment. The Court noted how the Carabinieri had informed the authorities of the applicant's partner's dangerous behaviour, and there were clear signs of risk, including the presence of a typical pattern of escalation (from threats to the woman and children to repeated physical assaults). The investigators were also aware of the man's mental illness. However, the authorities did not take measures to protect the applicant. The ECtHR concluded that the risk linked to the recurring violence was not adequately assessed and managed. The inertia of the authorities meant that the applicant continued to be a victim of threats, assaults and harassment by her partner (similar findings in Volodina v. Russia, no. 41261/17 of 9 July 2019, and Opuz v. Turkey, no. 33401/02 of 9 June 2009). In Kurt v. Austria ([GC], no. 62903/15 of 15 June 2021), the Court clarified the scope and content of the positive obligations of the authorities in the context of domestic violence under Article 2 ECHR: they must react immediately to complaints; ascertain whether there is a real and immediate risk to life and, if so, take concrete measures. The ECtHR considered that, in the present case, the State authorities failed to fulfil these obligations. The Italian legal framework - as also acknowledged by the Council of Europe Group of Experts against Domestic Violence (GREVIO) in assessing the conformity of the Italian legislation with Article 55.1 of the Istanbul Convention - provides for various measures suitable for protecting family members from the violent behaviour of their relatives which can be activated independently of the filing of penal complaints and after their withdrawal, and irrespective of the victim's changed risk perception. The ECtHR, therefore, unanimously found a violation of Article 2 ECHR. However, it did not consider that the case also demonstrated a breach of Article 14 ECHR (discrimination based, in this case, on gender). The Court held that there was no evidence that the judiciary had acted in a discriminatory manner or with discriminatory intent towards the person concerned. In this connection, the ECtHR recalls that Article 14 ECHR is deemed violated in the case of widespread flaws arising from national authorities openly and systematically failing to perceive the severity, extent and discriminatory effect on women of the problem of domestic violence. For the violation of Article 2 ECHR, the Court ordered the Italian Government to pay € 32,000 as just satisfaction for non-pecuniary damage and reimbursement of costs incurred.

The De Giorgi and M.S. cases: domestic violence as a violation of Article 3 ECHR

In the case De Giorgi (no. 23735/19, judgment of 16 June 2022), the application concerns the violation of Article 3 ECHR for the lack of protection and assistance by the State to the victim of domestic violence perpetrated by the husband against the applicant and her children. Between 2015 and 2019, the applicant had filed numerous complaints against her husband for injuries (she had been hit on the head with a helmet), threats (including death threats in front of the children), harassment, stalking (microphones in the house, stakeouts and surveillance of her movements). However, the Italian authorities had never adopted protective measures for the applicant and her children. They shelved the complaints, arguing that the applicant's statements were not 'sufficiently credible given the high level of conflict between the parties.' The Court, recalling its case law on the criteria for qualifying when ill-treatment reaches the minimum level of severity to fall within the scope of Article 3 ECHR, emphasizes that the applicant had suffered violence documented by medical reports and witnessed by the Carabinieri and that such conduct had been repeated over the years, as proven by the numerous complaints. The shelving of the latter further exacerbated the applicant's feelings of anxiety and helplessness. For these reasons, the Court concludes that the situation falls within the scope of Article 3 ECHR. As in the Landi case, the Court applies the Kurt test on the State's positive obligations to prevent domestic violence, observing that while the Carabinieri had intervened promptly, even requesting the adoption of protective measures, the public prosecutor had not used the necessary diligence and had failed to initiate prompt and effective investigations, so much so that the proceedings related to the complaints of 2015, 2016 and 2017 to 2022 were still pending. In particular, according to the ECtHR, the judicial authorities did not promptly and proactively assess the risk of recidivism that emerged from the pattern of escalation and did not adopt protective measures despite the request of the Carabinieri. The Court unanimously found a violation of the substantive and procedural aspects of Article 3 ECHR and ordered the Italian Government to pay €10,000 in compensation for non-pecuniary damage, plus € 6,983.75 in reimbursement of costs.

In the case of M.S. (application no. 32715/19, judgment of 7 July 2022), the applicant complained of a violation of Article 3 ECHR (torture and inhuman treatment) in both its substantive and procedural aspects, due to the State's failure to adopt the necessary procedural measures and guarantees to protect her from domestic violence by her husband. Between 2007 and 2010, the applicant had filed at least five complaints for harassment, threats and stalking by her husband against her, also requesting on several occasions that the competent authorities promptly adopt protective measures. Meanwhile, various potential offences reported by the applicant had become time-barred (for example, the knife attack reported in 2007 and an assault with a stick reported in 2008) without any suitable precautionary measures having been taken. To determine whether the facts complained of reach the minimum level of severity, it is necessary to assess all the factual elements as a whole, in particular the nature and context of the treatment, its duration, its physical and mental effects, the gender of the victim and the relationship between the latter and the alleged perpetrator. The ECtHR also recalled that for the qualification of treatment as 'degrading', as less grave conduct than ill-treatment, it is sufficient to prove that the conduct humiliates or debases an individual, showing a lack of respect for their human dignity or diminishing it, or that it arouses in the victim feelings of fear, anguish or inferiority capable of breaking their moral and physical resistance (Bouyid v. Belgium [GC], no. 23380/09 of 28 September 2015). The psychological impact of the conduct (anguish and stress) is a central aspect in cases of domestic violence (Valiulienė v. Lithuania, no. 33234/07 of 26 March 2013, and Volodina v. Russia (no. 2), no. 40419/19 of 14 September 2021); the very fear of further assaults may be sufficiently serious to induce in victims of domestic violence suffering and anguish such as to constitute a violation of Article 3 ECHR (Eremia v. Republic of Moldova, no. 3564/11 of 28 May 2013 and T.M. and C.M. v. Republic of Moldova, no. 26608/11 of 28 January 2014). In this regard, the Court notes that the applicant had complained on several occasions of a coercive and controlling attitude by her husband, manifested in the surveillance of her movements, threats, as well as physical injuries ascertained in the hospital. The Court notes that the Italian authorities effectively reacted without delay to the applicant's complaints, gathering evidence and adopting removal measures against the man and protection measures towards the applicant. At the same time, however, in the period between the 2007 complaint (knife attack) and the 2008 report (assault with a stick), the authorities failed to carry out an immediate and proactive assessment of the risk of recurrence of violence and to adopt operational and preventive measures to mitigate this risk. For thirteen months, the authorities did not take any measures. From 2008 to 2019, on the other hand, the authorities correctly assessed the risk, i.e. adopting an independent, proactive and comprehensive approach. In conclusion, according to the Court, the Italian State violated Article 3 ECHR in its substantive aspect from 2007 to 2008. Concerning the procedural aspect, the Court points out that the procedural obligations arising from Article 2 and 3 ECHR cannot be considered respected when an investigation is closed due to statute of limitations, i.e. due to a fact attributable to the inactivity of the authorities (reference is made to the Advisory Opinion on the applicability of statutory limitations to criminal prosecution, conviction and punishment for acts amounting in substance to torture [GC], request no. P16-2021-001 of the Armenian Court of Cassation of 26 April 2022, and to the decisions cited therein). The Court notes that following the applicant's complaints, four investigations were opened (for assault, harassment and threats, and ill-treatment). Concerning the first, initiated in 2007, the first instance conviction was filed in 2015, and in 2016, the offence was declared time-barred by the Court of Appeal; the ill-treatment reported in 2008 became statute-barred in 2016; for a third procedure opened in 2010, the finding of statutory limitation occurred in 2020 and, as regards to the fourth procedure opened in 2013, it was still pending in 2022. Therefore, according to the ECtHR, it is impossible to state that the Italian authorities acted with sufficient promptness and diligence. The closure of proceedings for ill-treatment or domestic violence due to statutory limitations indicates a lack of effective protection if the statutory limitation is due to shortcomings on the part of the authorities (Valiulienė v. Lithuania, no. 33234/07 of 26 March 2013). Crimes related to domestic violence must, according to the Court, fall within the violations of Article 3, even if they concern the responsibility of private individuals; it is, therefore, incompatible with the procedural obligations arising from Article 3 ECHR to conclude a procedure due to statutory limitations caused by the inactivity of the judiciary. The GREVIO report on Italy points out how procedural delays in many cases lead to many criminal procedures for domestic violence becoming time-barred, including procedures for ill-treatment, harassment and sexual violence. The Court emphasizes the particular diligence required in dealing with complaints of domestic violence and the duty of States to fight the impunity that perpetrators may think they can benefit from and to support instead, through their action, citizens' confidence in the rule of law, avoiding any conduct that may appear as tolerance or collusion with acts of violence. The Court unanimously found a violation of Article 3 ECHR also in its procedural aspect because, firstly, the judiciary allowed in these cases the statute of limitations to run even after the initiation of a prosecution; therefore, the ineffectiveness of the criminal proceedings is closely linked to the efficiency of judicial action; secondly, the prosecutors conducted the criminal investigation in a manner incompatible with the legislation enacted to combat domestic violence. However, the inaction shown by the judiciary, while constituting a violation of Article 3 ECHR, was not considered to constitute discrimination (based on gender) within the meaning of Article 14 ECHR in conjunction with Article 3 ECHR. The Court, therefore, unanimously found a violation of Article 3 ECHR in both its substantive (from 2007 to 2008) and procedural aspects, awarding the applicant a just satisfaction of €10,000. The Court also rejected the Government's unilateral declaration, with which Italy had asked for the case to be struck out without a finding of violation, as in 2020, it had unilaterally acknowledged its responsibility. The Court reiterates that the purpose of its judgments is not only to resolve cases but also to safeguard and develop the norms of the Convention and thereby contribute to upholding the commitments undertaken by States.

Other cases. The ex officio proceedings for sexual violence on minors and the Lanzarote Convention

In the case of G.L. and E.L. (application no. 26101/20 of 6 September 2022), the applicants complained of a violation of Articles 2, 3 and 8 ECHR because the Italian authorities failed to take the necessary protection and safeguarding measures to protect them and their biological mother from the violent acts committed by their aunt and her husband. The Government acknowledged the violations and offered compensation for non-pecuniary damage suffered and costs incurred. The applicants accepted the terms of the Government's declaration, and the application was struck out from the list under Article 37 ECHR.

The case of D.K. (no. 14260/17, judgment of 1 December 2022) also concerns Article 3 ECHR. The applicant complains that the Italian authorities failed to conduct an effective investigation into the alleged sexual abuse she suffered from her uncle. In 1999, fifteen years after the alleged violence, the applicant and her sister had filed a complaint for sexual abuse against their uncle, to whom their mother had entrusted the two minors for care and upbringing. However, the Italian authorities had shelved the complaint because it was filed late, i.e. more than three months after reaching the age of majority. The law at the time did not provide ex officio proceedings. In 2003, the Court of Appeal also rejected the claim for damages in civil proceedings, considering that the time between the alleged abuse and the criminal complaint had rendered the complainants' statements not credible. The ECtHR begins its reasoning by recalling that national authorities have a positive obligation to conduct an effective official investigation to establish the facts and identify and punish those responsible in all cases where acts contrary to Article 3 ECHR are reported. In the present case, the psychologist's reports, the prosecution's conclusions about the existence of serious evidence of sexual violence against the adult, and the accusations of rape and sexual assault made by the applicant against the man were sufficiently serious to fall within the scope of Article 3 ECHR (see X and Others v. Bulgaria ([GC], no. 22457/16 of 2 February 2021). The authorities, therefore, had an obligation to conduct investigations to clarify all the circumstances of the case. Indeed, following the applicant's complaint, such investigations were performed, with the hearing of the sisters and the mother and the acquisition of the reports of the psychologist who was treating the girls. At the time of the events (before the entry into force of the Lanzarote Convention, which establishes the principle of ex officio prosecution of sexual offences committed against minors, also establishing that proceedings may continue even if the victim withdraws the complaint), many European States provided for a private prosecution. Only after the entry into force of the Lanzarote Convention did the ex officio opening of an investigation, not subject to a complaint by the victim, for any type of sexual abuse of minors become the rule for most States, including Italy. Similarly, national laws have extended the limitation periods for these offences. Considering the situation at the time of the events, the Court held that the response of the national authorities was not so flawed as to constitute a violation of the positive obligations arising from Article 3 ECHR. The ECtHR considered that the non-retroactivity of the legislation that introduced ex officio prosecution in some instances of sexual violence against minors (Law No. 66 of 1996, which introduced, among other things, Article 609-septies of the Criminal Code, on ex officio prosecution of sexual violence committed by the person to whom the minor is entrusted) is not incompatible with the Court's case law. The Lanzarote Convention itself does not require the retroactive application of this rule. The Court, therefore, unanimously concluded that Italy did not violate Article 3 ECHR.