European Court of Human Rights
11 February 2020
Facts
Relying on a forensic medical certificate, the applicant reported her former husband’s violent behaviour to the authorities. She requested an electronic search of the family computer to be used in evidence for the criminal proceedings, alleging that her former husband had improperly consulted her electronic accounts, including her Facebook account, and that he had made copies of her private conversations, documents and photographs. That request was dismissed because any evidence likely to be gathered in this way would be unconnected with the alleged threats and violent acts committed by her former husband. Subsequently, the applicant lodged another complaint against her former husband for violation of the confidentiality of her correspondence, which was dismissed as out of time. The court ruled that data published on social networks was public.
Complaint
The applicant complains of the ineffectiveness of the criminal investigation into the acts of marital violence of which she claimed to be the victim. She complained that her safety was not adequately secured. She also criticises the authorities’ refusal to examine her complaint alleging a breach of her correspondence by her former husband. She relied on Articles 5, 6 and 8 of the Convention.
Court’s ruling
In both domestic and international law, the phenomenon of domestic violence is regarded not as being confined to physical violence but as also psychological violence or harassment. Furthermore, cyberbullying is currently recognised as an aspect of violence against women and girls and can take on various forms, including cyber violations of privacy, hacking the victim’s computer and the stealing, sharing and manipulation of data and images, including intimate details. In the context of domestic violence, cybersurveillance is often traceable to the person’s partner. The Court therefore accepted that such acts as improperly monitoring, accessing and saving the spouse’s or partner’s correspondence could be considered by the domestic authorities when investigating cases of domestic violence. Such allegations of breach of confidentiality of correspondence required the authorities to examine the merits to gain a comprehensive grasp of the phenomenon of all the possible forms of domestic violence.
No examination had been carried out on the merits of the present case. The domestic authorities had failed to take procedural steps to gather evidence to establish the reality or the legal classification of the facts. They had been overly formalistic in dismissing any possible connection with the domestic violence which the applicant had already brought to their attention and had thus disregarded the various possible forms taken on by domestic violence.
The State had therefore failed to honour its positive obligations under Articles 3 and 8 of the Convention.