CEDAW/C/73/D/100/2016
when trying to exhaust it. Similarly, Y., who is a mother of three, was obliged to
continue to live in the same apartment with her husband, who constantly subjected
her to violence. She felt unsafe, but the authorities offered her no protection, despite
being aware of the ongoing violence. Those circumstances prevented her from
undertaking a private prosecution in her case. In addition, even with legal
representation, the presence of the two authors would have been required in court.
Furthermore, given the general amnesty act of 2015 on the seventieth anniversary of
the victory in the Great Patriotic War, all attempts to have the perpetrators sanctioned
would have been futile.
7.8 In the light of the foregoing, the authors claim that the State party failed to
demonstrate that the remedy invoked was adequate or that access to it was ensured,
given that it could not bring effective relief, restore the authors ’ rights or protect them
against ongoing violence.
7.9 In addition, the authors contend that the absence of special legislation regarding
the protection of victims of domestic violence, urgent protection measures (protection
orders) and free legal aid in domestic violence cases constitute violations of the
Convention. In that connection, the authors note that the State party has not objected
to that aspect of the communication.
7.10 In 2016, article 116 of the Criminal Code, addressing battery of close relatives,
was amended and the prosecution of such cases passed from the category of private
to private-public (the case is opened by the police following a complaint by an injured
party). In February 2017, battery of relatives was decriminalized and such acts no
longer constitute a crime and are categorized as an administrative offence.
7.11 In the light of the above considerations, the authors consider that they have done
everything possible to protect their rights at the domestic level. For a long time, the
authorities were aware of the authors’ situations of repeated violence and threats
against them, but neither of the authors could receive the assistance that they needed.
Given that they have submitted numerous complaints to the police and to the courts
of first and second instance, the recourse to a further, extraordinary, ineffective and
non-accessible remedy could not be seen as corresponding to the spirit of the
Convention.
Issues and proceedings before the Committee
Consideration of admissibility
8.1 In accordance with rule 64 of its rules of procedure, the Committee must decide
whether the communication is admissible under the Optional Protocol.
8.2 In accordance with article 4 (2) (a) of the Optional Protocol, th e Committee is
satisfied that the matter has not already been and is not being examined under another
procedure of international investigation or settlement.
8.3 The Committee notes that the State party challenges the admissibility of the
present communication on the grounds of non-exhaustion of domestic remedies. The
State party observed that under article 401 (1) of the Criminal Procedure Code, court
decisions that have obtained the status of res judicata may be subject to a cassation
appeal. Neither of the authors, however, submitted a cassation appeal.
8.4 The Committee has taken note of the authors’ objections as to the effectiveness
of cassation proceedings in criminal cases. The Committee notes that the proceedings
in question are aimed at challenging decisions that have entered into force, on points
of law only. The decisions on whether to refer a case for hearing and examination by
a cassation court are discretionary in nature, given that they are made by a single
14/18
19-15442
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