CEDAW/C/73/D/100/2016
applying to the Court. In addition, in Gasan v. Russian Federation, 5 the European
Court of Human Rights found that the appeal procedure as amended did not constitute
a standard remedy to be exhausted prior to applying to the Court. The cassation appeal
proceedings cannot therefore be considered to be an effective remedy in cases similar
to the present one. It is up to the State party to show that a particular remedy is
effective, in particular, by providing examples of national court practice. That was
not done in the present case. The authors contend that the examples quoted by the
State party relate to cases that are different from the present one.
7.4 The authors reiterate that private prosecution is not an adequate remedy in cases
of domestic violence. The Committee has noted the need to provide women who are
victims of domestic violence with prompt access to justice, including, when needed,
to legal aid. 6
7.5 In addition, the Committee has repeatedly recognized that the practice of
qualifying domestic violence as a private matter is harmful and based on stereotypes.
The practice of private prosecution places the burden of proof on the victim of
violence, without ensuring the adequate protection of the victim (through a restraining
order, for example). Only 20 per cent of criminal cases pursued through private
prosecution end with a guilty verdict. Acquittals in cases of domestic violence account
for 87 per cent of all acquittals in the Russian Federation. Non -governmental
organizations have repeatedly pointed out the ineffectiveness of the procedure. In its
concluding observations on the eighth periodic report of the Russian Federation
(CEDAW/C/RUS/CO/8), the Committee expressed concern about the fact that
domestic violence was treated as a “private matter” and recommended that the State
party introduce ex officio prosecution of domestic and sexual violence. The European
Court of Human Rights has also drawn attention to the need for criminal cases on
family violence to be opened in the name of the State, irrespective of the readiness of
the victim to initiate a private prosecution, and for perpetrators to be prosecuted and
sanctioned. 7
7.6 In the present case, the authors reported the domestic violence to the police and
requested the opening of a criminal case, but the authorities refused to do so for a
long time, referring to the need to carry out private prosecution proceedings. As a
result, the violence against the authors continued. The existence of a constant threat
to the authors and their children should have been taken into account as an
extraordinary circumstance when the police were deciding whether to open a criminal
case.
7.7 In addition, an effective remedy, and access to that remedy, should take into
account the special needs of victims of domestic violence. The private prosecution
procedure requires the constant presence of the victim, even if she is represented by
counsel. The absence of the victim from court leads to the closing of the case. Such
proceedings are lengthy and, in addition, free legal aid is not provided, which limits
access to the remedy, and recourse to such proceedings leads to the revictimization of
the victims of violence. X. explained that, throughout the proceedings, each time she
met her husband, he subjected her to physical violence in public places, in front of
her minor daughter. Out of fear, she was obliged to seek out a shelter for victims of
domestic violence. The remedy in question is therefore clearly inadequate in such
circumstances, and the author had to risk her physical and psychological integrity
__________________
5
6
7
19-15442
European Court of Human Rights, Gasan v. Russian Federation (application No. 43402/02),
judgment of 24 February 2005.
See A.T. v. Hungary (A/60/38, part one, annex III).
See European Court of Human Rights, Opuz v. Turkey (application No. 33401/02), judgment of
9 June 2009; Bevacqua and S. v. Bulgaria (application No. 71127/01), judgment of 12 June 2008;
and M.C. v. Bulgaria (application No. 39272/98), judgment of 4 December 2003.
13/18
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