The ECHR and the Positive Obligation to Criminalise Domestic Psychological Violence

Abstract

This article explores the scope of the positive obligation deriving from the case law of the European Court of Human Rights (ECtHR) to criminalise forms of domestic psychological violence. This is primarily done by examining the implications of Volodina v Russia (No. 1), Volodina v Russia (No. 2) and Tunikova and Others v Russia regarding the obligation in question. Additionally, this article addresses different legislative approaches towards the criminalisation of domestic violence that have been distinguished by the ECtHR and discusses whether they adequately criminalise domestic psychological violence. Some approaches appear ill-suited as they concern national offences that focus on serious incidents. Domestic psychological violence, on the other hand, can involve a course of conduct consisting of seemingly minor incidents. It is concluded that State Parties should review to what extent such forms of psychological violence are criminalised under their national criminal laws.

1. INTRODUCTION

It has been argued in various contexts that the legal interest of psychological integrity is not adequately protected under criminal law.¹ Indeed, causing mental suffering or manipulating someone’s mental state often does not constitute a criminal offence or only to a limited extent. In contrast, many acts that impair someone’s physical integrity are generally criminalised, including rather minor actions such as inflicting some seconds of minor bodily pain, pushing someone in cold water or firmly touching another person.²

Limited criminal law protection of an individual’s psychological integrity poses legal concerns, especially given that international obligations appear to require more comprehensive protection. Article 33 of the Istanbul Convention, for instance, establishes the obligation to criminalise psychological violence.³ This form of violence is defined as intentionally seriously impairing someone’s psychological integrity through coercion or threats. According to the monitoring body of the Istanbul Convention (‘GREVIO’), many State Parties have not sufficiently criminalised psychological violence.⁴ While the importance of Article 33 in the collective combatting of psychological violence is evident, there remains some uncertainty concerning the persuasiveness and legitimacy of GREVIO’s pronouncements. GREVIO has a broad interpretation of Article 33, which does not derive from the text of the provision or the Explanatory Report to the Istanbul Convention.⁵ The interpretation is also not convincingly reasoned, which is especially problematic considering that GREVIO is an expert body, not a judiciary.⁶

Issues of legitimacy do not exist in the context of the European Convention on Human Rights (ECHR or the Convention); State Parties are bound by the judgments of the European Court of Human Rights (ECtHR or the Court).⁷ It is therefore pertinent to consider what the Court expects from State Parties when it comes to the criminal law protection of someone’s psychological integrity. Intentionally impairing someone’s psychological integrity can, depending on the gravity of the situation, violate Article 3 (prohibition of torture) or Article 8 (right to privacy) of the Convention.⁸ Positive obligations derive under these provisions to adequately regulate this behaviour.⁹ Under circumstances, the regulation must consist of criminal provisions. It stands out, for instance, that the Court increasingly emphasises the role of criminal law in providing protection against forms of domestic violence that are not physically abusive, such as domestic psychological violence.¹⁰ While it is apparent that certain forms of domestic psychological violence should be criminalised, the scope of this obligation is unclear. This will be addressed in Section 2 of this article.

Additionally, in Section 3, the article discusses the ECtHR’s evaluation of different legislative approaches towards the criminalisation of domestic (psychological) violence. The Court has considered that criminal law protection against domestic violence can be realised in different ways, provided that the protection remains effective.¹¹ This raises the question to what extent the approaches distinguished by the Court adequately criminalise domestic psychological violence. This question is particularly relevant because, as will be discussed, most generic offences focus on relatively serious incidents while psychological violence can involve a course of conduct consisting of incidents that appear minor in isolation. The article finishes in Section 4 with a summary and reflection.

2. THE POSITIVE OBLIGATION TO CRIMINALISE DOMESTIC PSYCHOLOGICAL VIOLENCE

The discussion in this section revolves primarily around the implications of the cases of Volodina v Russia (No. 1), Volodina v Russia (No. 2) and Tunikova and Others v Russia regarding the obligation to criminalise forms of domestic psychological violence.¹² The ECtHR criticises Russia in these cases for not providing criminal law protection against non-physically abusive forms of domestic violence, such as domestic psychological violence, and subsequently obliges Russia to criminalise these forms. The cases of Volodina (No. 1) and Tunikova and Others will be discussed first as they both concern a violation of Article 3 of the ECHR, whereas Volodina (No. 2) concerns a violation of Article 8.

A. The Cases

(i) Volodina v Russia (No. 1)

The applicant in Volodina v Russia (No. 1) is an alleged victim of several abusive acts from her former husband following their separation. These acts include physical assaults of which one resulted in an abortion, as well as (death) threats, coercive and controlling behaviour, abduction, destroying personal items, attempting to kill her by damaging her car brakes, placing a GPS tracking device in her bag and publishing intimate images of her without consent.¹³ The authorities refused to institute criminal proceedings in respect of almost all of these acts, mainly because they believed that the acts did not constitute a criminal offence. For instance, the threats were not considered to be sufficiently specific or ‘real’.¹⁴ The applicant complained that the authorities did not protect her from the treatment proscribed by Article 3 of the ECHR and did not hold the perpetrator accountable.¹⁵ She asserted in particular that the Russian criminal law framework does not adequately address domestic violence.¹⁶

The ECtHR considers that the impact of the abuse reaches the threshold of Article 3. This is true for the physical impact as well as the psychological impact.¹⁷ In respect of the latter, the Court qualifies the applicant’s feelings of fear, anxiety and powerlessness, in combination with the perpetrator’s controlling and coercive conduct, as ‘inhuman treatment’.¹⁸ It is an important recognition that the psychological impact of domestic violence can constitute ill-treatment on its own. Psychological impact refers in this regard to the impact of non-physically abusive conduct, such as threats, humiliation and forms of controlling and coercive conduct.¹⁹

The ECtHR then examines whether Russia has established an adequate legal framework that provides protection against domestic violence. The Court considers in general that

[t]he obligation on the State in cases involving acts of domestic violence would usually require the domestic authorities to adopt positive measures in the sphere of criminal-law protection. Such measures would include, in particular, the criminalisation of acts of violence within the family by providing effective, proportionate and dissuasive sanctions.²⁰

This consideration raises two questions: to which acts of domestic violence does the Court refer and under which circumstances is criminalisation required? Regarding the former question, it stands out that the consideration is made in the context of Article 3 of the Convention. This suggests that ‘acts of domestic violence’ refer to acts that reach the threshold of this provision. Importantly, the Court has considered that ‘the prohibition of ill-treatment under Article 3 covers all forms of domestic violence, including various forms of psychological violence’.²¹ This last part refers to threats and the fear of further assaults, whereby the Court underscores that threats do not need to involve a direct and immediate threat to the life or health of the victim to instil fear.²² Even seemingly innocuous conduct can actually be intimidating and instil fear in a domestic violence victim.²³ The second question, which concerns the circumstances under which criminalisation is called for, arises because the ECtHR remarks that criminal law protection is ‘usually’ required in respect of acts of domestic violence, so not always. This implies that State Parties have some margin of appreciation in regulating different acts of domestic (psychological) violence that reach the threshold of Article 3. Unfortunately, the Court does not elaborate upon this.

Considering that domestic violence usually requires criminal law protection, the ECtHR states that Russian offences ‘are insufficient to offer protection against many forms of violence and discrimination against women, such as harassment, stalking, coercive behaviour, psychological or economic abuse, or a recurrence of similar incidents protracted over a period of time’.²⁴ Russia primarily utilises offences that criminalise causing bodily injuries or physical pain to prosecute acts of domestic violence (Articles 111 to 116 of the Russian Criminal Code).²⁵ According to the Court, these offences do not cover forms of domestic violence ‘which do not result in physical injury – such as psychological or economic abuse or controlling or coercive behaviour’.²⁶ While Russia has also criminalised threats (Article 119 of the Russian Criminal Code)—which is, surprisingly, not discussed by the Court—, this offence only covers death threats and threats of bodily harm.²⁷ Accordingly, it has a relatively high threshold. Article 119 does not seem to cover other forms of psychological violence such as seemingly minor threats. Because of these limitations, a criminal law remedy was not available in respect of the applicant’s mental suffering. The applicant’s feelings of fear, anxiety and powerlessness were caused by threatening and coercively controlling conduct such as harassment, stalking, digital monitoring and publishing the applicant’s private photographs to humiliate her.²⁸ These non-physically abusive acts of domestic violence fall outside the scope of national criminal law, which is contrary to Article 3.

The above-mentioned criticism of the Court is also expressed in the next case, which is in many aspects similar to Volodina (No. 1). Yet, there is an important difference. In short, while the Court initially reiterates in Tunikova and Others v Russia that criminalisation is usually required in respect of acts of domestic violence, it eventually explicitly obliges Russia to criminalise all acts of domestic violence. The latter suggests that every act of domestic psychological violence that falls within the scope of Article 3 should be criminalised.

(ii) Tunikova and Others v Russia

The case of Tunikova and Others v Russia concerns four women who were abused by their (ex-)partners. They suffered physical pain and (grievous) bodily injuries caused by incidents such as kicking, punching, attempted strangulation and chopping off both hands with an axe for alleged infidelity.²⁹ They also experienced feelings of fear, anguish, powerlessness and stress caused by (death) threats, insults, humiliation and coercive and controlling tactics such as stalking, monitoring, taking an applicant’s passport and phone, kidnapping and locking an applicant in the car.³⁰ The authorities refused to institute criminal proceedings into most of the abusive incidents or discontinued such proceedings because, among other reasons, the abuse was considered as a result of ‘ordinary household conflicts’.³¹ The applicants complained that Article 3 of the ECHR has been violated. According to them, the respondent authorities failed to provide protection against domestic violence due to a deficient legal framework.³²

The ECtHR notes that the conduct complained of by the applicants reaches the threshold of Article 3.³³ It specifically underscores that the ‘psychological aspects’ of the abuse are serious enough on their own to reach the threshold of this provision.³⁴ These aspects relate to the threatening and coercively controlling conduct deployed by the perpetrators.

The Court then finds that the authorities did not comply with the so-called ‘substantive’ positive obligation under Article 3.³⁵ The Court expresses the same criticism as in Volodina (No. 1), namely that non-physically abusive forms of domestic violence are not adequately criminalised. The Court states:

under Russian law, the forms of domestic violence which do not result in actual bodily injury or cause physical pain – such as stalking, verbal, psychological or economic violence, or any forms of controlling or coercive behaviour – are not prosecutable under any legislation and are not considered even theoretically to constitute an offence against the victim’s physical or psychological integrity.³⁶

The Court remarks, for instance, that the controlling and coercive conduct which one applicant experienced did not constitute an offence. This includes locking her in the car, loitering outside her home and office and following her around town.³⁷ As discussed, such incidents fall outside the scope of Russian criminal law due to the high threshold of Russian offences as well as their focus on physical harm.

The ECtHR reiterates that ‘acts of domestic violence would usually require the authorities to adopt measures in the sphere of criminal-law protection’.³⁸ Again, this implies that not every act of domestic violence which reaches the threshold of Article 3 of the Convention should be criminalised. In the same vein, the Court points out that ‘individual incidents of domestic violence may, by reason of their gravity, fall under various disparate provisions of administrative or criminal law’.³⁹The Court does not require in this respect that a situation of domestic violence that consists of incidents of disparate severities must be criminalised as a whole.⁴⁰ It only emphasises that it is important that the (criminal and administrative) authorities coordinate their actions, consider the situation as a whole and have a comprehensive and systematic approach to address domestic violence.⁴¹ In this view, it seems to be in accordance with Article 3 of the ECHR to address less serious incidents of a situation of domestic violence under civil or administrative law and serious incidents under criminal law, provided that the different authorities coordinate their actions.⁴² Put differently, even if a situation of domestic violence reaches the level of severity required under Article 3 of the Convention, it appears that State Parties can opt not to provide criminal law protection in respect of less serious incidents of that situation. This discretion would also extend to less serious psychologically abusive incidents.

Paradoxically, the judgment also provides indications that acts of domestic violence should always be criminalised. For instance, the ECtHR finds it necessary to examine whether ‘domestic substantive law is capable of ensuring that all forms of domestic violence are prosecuted and punished’.⁴³ Similarly, the Court makes so-called Article 46 injunctions,⁴⁴ which it did not do in Volodina (No. 1),⁴⁵ and states that Russian ‘[d]omestic substantive law must criminalise and make punishable by appropriate penalties all acts of domestic violence, including battery and forms other than injuries’.⁴⁶ The creation of this obligation is a response to the mentioned lacuna in Russian substantive criminal law, that is the lack of criminal law protection in respect of non-physically abusive acts of domestic violence.⁴⁷ Hence, it appears that the obligation to criminalise all acts of domestic violence at least includes psychologically abusive acts. In addition, the absolute formulation of the obligation suggests that all forms of domestic psychological violence that reach the threshold of Article 3 must be criminalised. This would mean that in respect of the positive obligation to criminalise domestic psychological violence, once the threshold of Article 3 has been reached, there is no place for a further assessment of the gravity of the conduct.

At first glance, the Court’s reasoning appears to be inconsistent. On the one hand, it asserts that criminalisation is usually required in respect of acts of domestic violence. On the other hand, it obliges Russia to criminalise all acts of domestic violence. However, it could be that, in light of the identified deficiency of the Russian criminal law framework, the Court uses absolute language to merely highlight that national criminal law should not by default turn a blind eye to certain types or forms of domestic violence, such as non-physically abusive forms. As mentioned before, the Court notes that forms of domestic violence that lack a physical aspect ‘are not considered even theoretically to constitute an offence against the victim’s physical or psychological integrity’.⁴⁸ This is problematic as some of these forms can be serious enough to warrant criminal law protection to comply with the obligations under Article 3. Yet, this does not mean that every instance of domestic psychological violence should be covered by a criminal provision. A margin of appreciation seems to exist under Article 3 when it comes to regulating less serious acts of domestic psychological violence. So, in this interpretation, criminalisation is indeed usually required regarding acts of domestic psychological violence which reach the threshold of Article 3.

It is noteworthy that, when assessing the gravity of domestic psychological violence, a distinction must be made between less serious incidents which stand alone and less serious incidents which form a psychologically abusive course of conduct. As will be discussed later, the presence of a course of conduct is regarded by the ECtHR as an aggravating circumstance. Relevant to reiterate here is the Court’s criticism expressed in Tunikova and Others that Russia has not criminalised incidents such as loitering around an applicant’s office and following her around town.⁴⁹ These seemingly minor incidents did not stand on their own but formed a controlling and coercive pattern of behaviour, which ultimately led to the applicant’s hands being chopped off by an axe. It is doubtful whether the Court would have also required criminal law protection if there was no controlling and coercive pattern of behaviour but only isolated incidents.

(iii) Volodina v Russia (No. 2)

The case of Volodina v Russia (No. 2) specifically concerns the cyber acts that were (allegedly) directed at the same applicant as in Volodina (No. 1). These acts consist of hacking her social media account, publishing her intimate photographs without consent, threatening her on social media, malicious impersonation on social media and stalking via a GPS device.⁵⁰ The applicant complained, now on the basis of Article 8 of the ECHR, that the Russian authorities failed to protect her against the repeated acts of cyberviolence and failed to adequately investigate the matter.⁵¹

Before delving into the ECtHR’s analysis of the complaint, the terminology used by the Court to refer to acts perpetrated within a digital or cyber sphere merits a brief discussion. The Court refers to such acts with different terms, including cyberviolence, cyberharassment, cyber-stalking and online violence.⁵² The Court also notes that cyberharassment can take various forms such as cyber-violations of private life and misusing information and (intimate) images of a victim.⁵³ The alleged acts are mostly referred to as acts of cyberviolence. The Court points out that cyberviolence is closely linked to offline violence and ‘falls to be considered as another facet of the complex phenomenon of domestic violence’.⁵⁴ Acts of domestic violence can happen offline or online, whereby the latter is thus categorised as cyberviolence.⁵⁵

The ECtHR considers that the alleged conduct and its psychological impact interfered with the applicant’s enjoyment of her private life. The Court notes that the acts of cyberviolence, which do not involve any physical violence or physical contact, aroused in the applicant feelings of anxiety, distress and insecurity.⁵⁶ In particular, the non-consensual publication of her intimate photographs ‘undermined her dignity, conveying a message of humiliation and disrespect’.⁵⁷ The Court finds a violation of Article 8 given that Russia did not ensure that the perpetrator was brought to justice. The Court states that ‘[t]he impunity which ensued was enough to shed doubt on the ability of the State machinery to produce a sufficiently deterrent effect to protect women from cyberviolence’.⁵⁸

It stands out that in examining whether the Russian legislative framework provides adequate protection against cyberviolence, the Court refers to the case of Söderman v Sweden and states that

as regards the acts which encroach on an individual’s psychological integrity, the obligation of an adequate legal framework does not always require that a criminal-law provision covering the specific act be put in place. The legal framework could also be made up of civil-law remedies capable of affording sufficient protection, possibly combined with procedural remedies such as the granting of an injunction.⁵⁹

This implies that acts of domestic cyberviolence which impair someone’s psychological integrity do not always require criminalisation to comply with the obligations under Article 8 of the ECHR. Yet, this discretion is not applicable in the instant case. The Court highlights that the alleged incidents of cyberviolence are serious incidents which sought to humiliate and degrade the applicant and aroused in her feelings of anxiety, distress and insecurity.⁶⁰ The gravity of the situation called for an effective criminal law measure, which was not provided by the respondent authorities and could not have been provided due to a deficient criminal law framework.⁶¹ The Court considers in this regard that ‘both the public interest and the interests of the protection of vulnerable victims from offences infringing on their physical or psychological integrity require the availability of a remedy enabling the perpetrator to be identified and brought to justice’.⁶² As indicated by the conjunction ‘or’ (physical or psychological integrity), a sole infringement of someone’s psychological integrity already seems to be able to warrant the availability of a criminal law remedy to comply with the obligations under Article 8. As mentioned, such a remedy should have been available in this case because the impairment of the applicant’s psychological integrity, that is the psychological suffering, is caused by serious incidents of cyberviolence.⁶³

To sum up, the case of Volodina (No. 2) demonstrates that State Parties are not obliged to criminalise every act of domestic violence that impairs an individual’s psychological integrity to comply with the obligations under Article 8 of the ECHR. It ultimately depends on the seriousness of the situation whether criminalisation is warranted. As discussed previously, the same appears to apply in the context of Article 3, albeit that a smaller margin of appreciation exists due to the high threshold of this provision.⁶⁴ These considerations raise the question: when is domestic psychological violence severe enough to warrant criminal law protection? It is difficult to determine under which specific circumstances such protection is warranted. However, it is safe to say that in assessing the severity of domestic psychological violence, the specific nature or distinctive features of domestic violence should be taken into account. Importantly, certain aggravating factors relate to the domestic violence context, such as the vulnerability of the victim, the potential systematic nature of the abuse and the fundamental interests that could be at stake, like autonomy, liberty and dignity. These aggravating factors are individually addressed hereafter. To be clear, the term ‘aggravating factors’ does not refer to circumstances that, according to domestic criminal law, qualify certain criminal conduct as ‘aggravating’, such as ‘aggravating assault’. It refers to factors that are relevant in assessing whether a situation of domestic psychological violence is severe enough that criminal law protection is called for to comply with the positive obligations deriving under Article 3 and Article 8 of the ECHR.

B. Aggravating Factors

(i) Course of conduct

The ECtHR considers that acts of domestic violence perpetrated by the same person against the same victim can form a course of conduct.⁶⁵ The Court states in Tunikova and Others v Russia, for instance, that ‘acts of domestic violence should never be considered in isolation but rather as a single course of conduct or a series of related incidents’.⁶⁶ In like fashion, the Court has stressed that ‘domestic violence could be understood as a particular form of a continuous offence characterised by an ongoing pattern of behaviour in which each individual incident forms a building block of a wider pattern’.⁶⁷ The Court finds it an ‘aggravating circumstance’ if incidents of domestic violence form a continuing situation.⁶⁸

Because domestic violence can involve an abusive course of conduct consisting of several incidents or one continuous incident, national authorities should take an overall view of the situation.⁶⁹ This contributes to an adequate assessment of the seriousness of the perpetrator’s conduct and the cumulative impact on the victim.⁷⁰ The ECtHR underscores that the overall view must include every incident of domestic violence, ‘however trivial the isolated incidents might be’.⁷¹ National authorities should especially consider the cumulative psychological effect of repeated abuse, which can consist of ‘profound mental suffering, distress and constant fear for [the victim’s] life and limb’.⁷²

In respect of acts which might appear trivial in isolation, the Court has highlighted that considering the history of abuse towards a victim and the relationship between such acts and other incidents can reveal their actual seriousness. The Court states in Hajduová v Slovakia, for example, that ‘given A.’s history of physical abuse and menacing behaviour towards the applicant, any threats made by him would arouse in the applicant a well-founded fear that they might be carried out’.⁷³ Similarly, the Court stresses in Milićević v Montenegro that even if a threat does not sound ‘too ominous’ in itself, the context of the case can reveal its real and imminent threatening nature.⁷⁴ Accordingly, incidents of a psychologically abusive pattern should be considered in the context of that pattern, not in isolation.

(ii) Vulnerability of the victim

The ECtHR has emphasised in various contexts that providing effective protection is essential when it comes to vulnerable individuals. This entails, among others, that State Parties must establish a legislative framework that provides effective deterrence against serious breaches of the physical or psychological integrity of vulnerable individuals and that allows for ‘a remedy enabling the perpetrator to be identified and brought to justice’.⁷⁵ This is no different in the context of domestic violence. It is well-established in the ECtHR’s case law that victims of domestic violence are particularly vulnerable and need active state involvement in their protection.⁷⁶ Several circumstances contribute to the vulnerability of the victim. For one, domestic violence usually occurs within the privacy of the victim’s home, which aggravates the suffering of the victim. The Court states in Irina Smirnova v Ukraine, for instance, that the applicant in this case experienced serious mental suffering, which was aggravated because the ‘violence and harassment occurred in the privacy of the applicant’s home, which prevented any outside help’.⁷⁷ Additionally, the Court notes that the applicant was unable to physically resist because the aggressor was stronger than her.⁷⁸ The Court also links the vulnerability of victims of domestic violence to their emotional, economic or some other kind of dependency on the assailant, which can be a result of coercively controlling conduct such as isolating tactics.⁷⁹ Furthermore, the Court highlights that domestic abuse is generally unpredictable, which increases the victim’s vulnerability. As the Court notes in Tunikova and Others v Russia: ‘The unpredictable escalation of violence and uncertainty about what might happen to them increased the applicants’ vulnerability and put them in a state of fear and emotional and psychological distress.’⁸⁰ This uncertainty makes it very difficult if not impossible for victims to comply with the demands of their abusive partners, leaving them in a state of fear and chronic anxiety.⁸¹ It is noteworthy in this respect that victims of domestic violence do not necessarily fear that something specific will happen if they upset or disobey the abuser.⁸² The fear can be general as the victim knows what can happen due to the history of abuse.⁸³ Because of the general climate of fear, the abuser does not have to utter concrete threats (anymore) to instil fear and establish control. Along the same lines, the ECtHR has stressed that ‘[t]hreats are a form of psychological violence and a vulnerable victim may experience fear regardless of the objective nature of such intimidating conduct’.⁸⁴ In essence, the victim’s vulnerability increases the gravity of domestic psychological violence and enables the perpetrator to control, coerce and threaten the victim through subtle and seemingly innocuous tactics.

(iii) Interests at stake

According to the ECtHR, the margin of appreciation to choose the means to secure compliance with the ECHR is narrowed when ‘a particularly important facet of an individual’s existence or identity is at stake, or where the activities at issue involve a most intimate aspect of private life’.⁸⁵ Accordingly, the Court has held that criminal law provisions must be enacted if ‘fundamental values and essential aspects of private life are at stake’.⁸⁶ Such values or aspects can be endangered by domestic psychological violence, especially when the violence involves a course of conduct. A psychologically abusive pattern, which can consist of all kinds of threatening, intimidating, degrading, isolating or controlling conduct, might not only cause mental suffering but also constrain the victim’s freedom or autonomy and offend her or his dignity.⁸⁷ A victim can live in a constant state of fear and anxiety due to a systematic level of psychological violence deployed by an abusive (ex-)partner to dominate and control her or him, which restricts the victim’s space for action.⁸⁸ It has been argued, for instance, that coercive control, referred to by the ECtHR as ‘controlling and coercive conduct’,⁸⁹ is a liberty crime that entraps and subordinates victims.⁹⁰ Coercive control involves a malevolent course of conduct that could entirely or primarily consist of psychologically abusive acts.⁹¹ It undermines a victim’s capacity for ‘independent decision-making and inhibit[s] effective resistance [to] or escape [from]’ the abusive relationship.⁹² In some instances, victims even ‘internalise the rules of the relationship and begin to automatically perform as the perpetrator requires’.⁹³ Thus, as sociologist Stark puts it, ‘the most common coercive control tactics also constrain autonomy, offend dignity, abrogate rights to sociability, free speech and movement, and quash self-determination, including economic and sexual self-determination’.⁹⁴ Values such as liberty, autonomy and dignity are arguably ‘fundamental values and essential aspects of private life’, especially given that the ECtHR believes that ‘[t]he very essence of the Convention is respect for human dignity and human freedom’.⁹⁵ As stated, these values can be undermined by a (serious) psychologically abusive pattern of behaviour perpetrated within a domestic setting. If so, it seems that criminal law protection is warranted. However, this remains somewhat uncertain. While the Court has recognised that domestic violence can offend a victim’s dignity, a value which is inherent in Articles 3 and 8 of the Convention,⁹⁶ the Court has yet to explicitly frame the issue of domestic violence as a violation of the victim’s autonomy or freedom, except for the right to be free from violence.⁹⁷ It is unclear why the Court does not address these values when examining domestic violence cases, particularly given that at least the value of autonomy is relevant in the context of Articles 3 and 8.⁹⁸

As mentioned, it seems that not every form of domestic psychological violence that reaches the threshold of Article 3 or Article 8 of the ECHR should be criminalised. A margin of appreciation exists in this respect. Nevertheless, that margin appears to decrease if the discussed aggravating factors are present. Each factor increases the gravity of the situation, which means that criminal law protection is more likely required to fulfil the positive obligations deriving under Article 3 and Article 8. In addition, while the three factors do not automatically coexist, they do influence each other. For instance, it seems more likely that fundamental values such as freedom and autonomy are at stake if the abuse is systematic and the victim is vulnerable. The systematic nature of the abuse can also increase the vulnerability of the victim. The victim can, for instance, become dependent on the perpetrator due to a systematic level of isolation, intimidation and control.⁹⁹ Accordingly, similar to how acts of domestic violence should be understood, the factors should be considered in relation to each other.

3. THE CRIMINALISATION OF DOMESTIC PSYCHOLOGICAL VIOLENCE

According to the ECtHR, ‘different legislative solutions in the sphere of criminal law could fulfil the requirement of an adequate legal mechanism for the protection against domestic violence’.¹⁰⁰ In Volodina v Russia (No. 1), the Court highlights two legislative solutions: criminalising domestic violence as a distinct offence and criminalising domestic violence as a form of other offences such as assault and threats.¹⁰¹ The Court mentions that the first approach is followed by Moldova and the second by Croatia, Romania and Lithuania.¹⁰² The second approach entails enacting ‘penalty-enhancing provisions relating to acts of domestic violence’.¹⁰³ This means that a heavier penalty can be imposed if, for instance, the offence of threats or assault is perpetrated within a domestic setting. This is the main difference from the legislative approach followed by Russia. While Russia also utilises generic offences such as threats and assault to prosecute domestic violence, Russian criminal law does not allow for the imposition of a heavier penalty if such offences are perpetrated within a domestic setting. The extent to which domestic psychological violence is criminalised by the mentioned State Parties is addressed hereafter.¹⁰⁴ It must already be mentioned that the Russian legislative approach is not explicitly recognised by the Court as an appropriate way to criminalise acts of domestic violence. However, the legislative approach as such does not appear to be problematic. The problem lies in the fact that the relevant Russian offences do not capture all forms of domestic violence that should be criminalised, such as psychologically abusive forms. If this were to be different, it seems that a State Party can comply with the positive obligation to criminalise domestic (psychological) violence by utilising generic offences such as threats and assault.

A. Different Legislative Approaches

(i) Distinct domestic violence offence

The first legislative approach, which concerns criminalising domestic violence as a distinct offence, is followed by Moldova. The Court refers in this respect to Eremia v The Republic of Moldova.¹⁰⁵ The Court notes in this case that Article 201 of the Moldovan Criminal Code criminalises ‘family violence’, which is defined as ‘the intentional action or inaction manifested physically or verbally … which caused physical suffering leading to light bodily harm or damage to health, or moral suffering, or to pecuniary or non-pecuniary damage’.¹⁰⁶ Based on this offence and the Moldovan legislation that allows for the issuing of protective orders in respect of domestic violence acts, the Court concludes that ‘the authorities had put in place a legislative framework allowing them to take measures against persons accused of family violence’.¹⁰⁷ When it comes to the criminalisation of domestic psychological violence, it stands out that the formulation of Article 201 is somewhat ambiguous.¹⁰⁸ It is unclear whether the offence criminalises conduct ‘which caused … moral suffering’ or conduct ‘which caused physical suffering leading to … moral suffering’.¹⁰⁹ In the latter interpretation, moral suffering is linked to physical suffering, which means that the mental impact of non-physically abusive acts might not be criminalised. However, the Court’s praise of the Moldovan legislative framework in Eremia suggests that the former interpretation is true. According to the Court, the Moldovan authorities were able to take necessary measures to address the abuse suffered by the applicants, which includes psychological suffering that does not stem from physical abuse.¹¹⁰ The first applicant experienced psychological suffering at the hands of her (ex-)partner who imposed his will upon her, as well as insulted, harassed and threatened her. In addition, their two children—applicants two and three—had repeatedly witnessed the abuse against their mother which affected their psychological well-being.¹¹¹

An advantage of the Moldovan domestic violence offence is that it does not require one type of conduct to bring about the required mental impact. Every conduct which causes moral suffering could be covered, such as one serious incident or a course of conduct consisting of relatively minor incidents. This advantage notwithstanding, focusing on a certain mental impact on the victim also has its drawbacks, which will be addressed later.

(ii) Aggravating form of other offences

The ECtHR believes that Croatia, Romania and Lithuania have criminalised domestic violence as an aggravating form of other offences such as threats and assault. At the outset, this legislative approach has an important limitation. Instances of domestic violence must first reach the threshold of these other offences before the domestic setting allows for the imposition of a heavier penalty. This is problematic when the scope of the base or underlying offence is limited to serious incidents, such as a serious threat. As discussed, a psychologically abusive pattern can involve incidents that do not reach this threshold. Remarkably, the ECtHR does not address this apparent limitation in its case law concerning the three States mentioned above.

It can be derived from Ž.B. v Croatia that Croatia has criminalised domestic violence as an aggravating form of causing bodily harm (Article 117 of the Croatian Criminal Code) and threats (Article 139 of the Croatian Criminal Code), which covers serious threats, such as threats to kill or to inflict serious bodily harm.¹¹² These offences appear to be similar to the discussed Russian offences of threats and assault in that they focus on physical harm and serious threats. It is unclear whether they cover a psychologically abusive course of conduct consisting of seemingly minor incidents. It is worth mentioning that Croatia has also enacted the Protection Against Domestic Violence Act, which labels domestic violence as a minor offence and enables the authorities to impose fines or imprison perpetrators of domestic violence for a period of up to ninety days.¹¹³ Domestic violence is broadly defined in this Act as any form of physical, mental, sexual or economic violence.¹¹⁴ Perhaps forms of domestic psychological violence that are not criminalised under the Croatian Criminal Code can still receive a criminal law measure based on this Act. Nevertheless, the fact that the Act labels forms of domestic violence as minor offences seems problematic. The Court has held that ‘the classification of domestic violence as a minor or administrative offence does not correspond to the serious harm it inflicts on the victims’.¹¹⁵ Domestic violence, including domestic psychological violence, must be criminalised in such a way that it adequately reflects the serious harm it inflicts. It is unclear whether the concerning Act accomplishes this. This uncertainty notwithstanding, the Court believes that

the 2011 [Croatian] Criminal Code, complemented by other comprehensive measures of protection from domestic violence, provided for an adequate legislative framework in Croatian law securing effective criminal-law mechanisms for protection from domestic violence at the relevant time.¹¹⁶

In the second State Party, Romania, it is an aggravating circumstance if the following acts are committed against a family member: homicide, assault or other violence causing physical suffering and bodily harm resulting in death.¹¹⁷ Again, this highlights the limitation of the concerning legislative approach. It appears that these offences do not cover many if not all forms of domestic psychological violence. Similarly to the Croatian framework, it could be that forms of domestic psychological violence are covered by Romanian Law no. 217/2003 on preventing and combating domestic violence. This Law enables the use of protective measures regarding family-based violence.¹¹⁸ It stipulates that family-based violence can be of a verbal, psychological, physical, sexual, economic, social or spiritual nature.¹¹⁹ In particular, it stresses that psychological violence includes ‘imposing one’s wishes or controlling the individual, control of the other person’s private life, monitoring the victim’s home, workplace or other locations frequented by him or her’.¹²⁰ While it seems that Law no. 217/2003 enables the use of protection orders concerning many forms of domestic psychological violence, it does not follow from the ECtHR’s case law that Law no. 217/2003 also enables the authorities to implement criminal law measures. The Court argues in Bălșan v Romania, for instance, that the government’s criticism that the applicant in this case did not make use of the provisions of Law no. 217/2003 is misplaced, because ‘what is at the heart of this case is the question of impunity for the acts of domestic violence, which is a matter to be addressed by the criminal courts’.¹²¹ Furthermore, while breaching a protection order can in theory constitute an offence, this does not seem to be the case in Romania. And even if such an offence exists under Romanian criminal law, it is doubtful whether this adequately criminalises domestic psychological violence. A direct criminal law measure would not be possible; a protection order must first be issued and then breached before a criminal law measure can be implemented. Moreover, utilising such an offence to cover domestic psychological violence would not reflect its seriousness as the offence concerns the criminal act of breaching a protection order.

Based on the above, it might seem surprising that the ECtHR considers in E.M. v Romania, Bălșan v Romania and Buturugă v Romania that the Romanian legislation addressing domestic violence is adequate.¹²² It is important to underline, however, that the framework is considered adequate in light of the applicants’ specific situations: Buturugă concerns physical violence, (death) threats and breaching the applicant’s correspondence;¹²³Bălșan concerns threats and physical violence resulting in injuries on three occasions;¹²⁴ and E.M. concerns physical violence and (death) threats.¹²⁵ These acts are covered by the mentioned offences and other, generic Romanian offences, such as threats, insults and breaching the secrecy of correspondence.¹²⁶ As indicated, it is highly doubtful whether the Romanian legislative framework will receive the same praise if a case were to present itself that involves forms of domestic psychological violence other than threats or insults that are serious in themselves.

Lastly, in Volodina v Russia (No. 1), the ECtHR refers to Valiulienė v Lithuania paragraph 78 and states that Lithuania has also criminalised domestic violence as an aggravating form of other offences.¹²⁷ The only offence mentioned in this paragraph is the Lithuanian offence of causing minor bodily harm (Article 140 paragraph 1 of the Lithuanian Criminal Code), which, the Court highlights, is prosecutable without a complaint from the victim.¹²⁸ Based on this offence, the Court considers in Valiulienė that ‘Lithuanian law provided a sufficient regulatory framework to pursue the crimes attributed by the [perpetrator to the] applicant …’.¹²⁹ What first stands out is that the case of Valiulienė provides no indications that causing minor bodily harm against an (ex-)partner or family member is regarded as an aggravating circumstance. It is therefore unclear why the Court considers in Volodina (No. 1) that Lithuania has criminalised domestic violence as an aggravating form of other offences. Secondly, the offence in question only criminalises causing minor bodily harm. It is uncertain whether forms of domestic violence which do not necessarily result in bodily harm, such as psychological violence, are criminalised in Lithuania. The case of Valiulienė does not provide any clarity in this respect. The Court does not address the criminality of the psychologically abusive acts suffered by the applicant.¹³⁰ If the Lithuanian authorities can only implement a criminal law measure in respect of forms of domestic violence which result in minor bodily harm, the framework seems to be no different than the Russian criminal law framework, which has been found deficient. And even if the Lithuanian offence of causing minor bodily harm covers instances of domestic psychological violence,¹³¹ it seems problematic that they would be qualified as minor bodily harm, which is punishable by a prison sentence of up to one year. It is uncertain whether this adequately reflects the seriousness of forms of domestic psychological violence that are otherwise not criminalised.

(iii) Utilising other, generic offences

Russia utilises generic offences, such as assault, manslaughter, murder, threats, insults and sexual offences, to prosecute forms of domestic violence. According to the ECtHR, Russia has not enacted any specific legislation to address domestic violence.¹³² The Russian Criminal Code ‘makes no distinction between domestic violence and other forms of violence against the person, dealing with it through provisions on causing harm to a person’s health or other related provisions, such as murder, death threats or rape’.¹³³ The Russian government argues that domestic violence is effectively captured by existing criminal law provisions, but the Court disagrees. It underlines that the Russian offences of assault, which criminalise different degrees of bodily harm, have a relatively high threshold and focus on physical injuries. Even though the Court does not discuss the ‘other related provisions’ of murder, death threats and rape, it seems that they are also ill-suited to capture domestic psychological violence. As mentioned previously, the offence of threats covers serious threats thus leaving many other forms of psychological violence outside its scope, such as less serious threats and other types of psychological violence.

It is worth noting that Russia has also criminalised ‘tormenting’ (Article 117 of the Russian Criminal Code). This offence criminalises ‘the causing of physical or mental suffering by means of systematic infliction of battery or other forcible actions which do not result in grievous or medium bodily harm’.¹³⁴ In contrast to the Russian offences of assault, Article 117 explicitly covers mental suffering. The Court considers, however, that ‘[t]his provision only covers certain forms of lesser physical violence which moreover need to be “systematic”; it leaves outside its scope not just many other types of violence but also any isolated or sporadic incidents’.¹³⁵ This suggests that Article 117 only captures mental suffering caused by systematic physical violence, not by systematic psychological violence.¹³⁶

Accordingly, instances of domestic psychological violence are not (fully) covered by the mentioned Russian offences. Still, it seems possible to rely on an offence which criminalises physical violence while taking domestic psychological violence into account as an aggravating circumstance when it comes to determining the sentence. This would de facto punish domestic psychological violence. Nevertheless, this would mean that domestic psychological violence cannot receive a criminal law response on its own, provided that other offences do not cover it. This is not in accordance with the positive obligation to criminalise this form of violence. As discussed, the ECtHR has criticised the Russian criminal law framework for not allowing the authorities to take a criminal law measure ‘unless and until the aggressive behaviour of a perpetrator has escalated into the causing of physical injuries’.¹³⁷ This implies that national authorities should be able to take a criminal law measure if a situation of domestic violence consists solely of non-physically abusive acts, such as psychological violence.

B. Limitations of the Legislative Approaches

The previous illustrates that forms of domestic psychological violence that involve a course of conduct consisting primarily or entirely of seemingly minor incidents are often not covered by offences such as threats and assault, regardless of any penalty-enhancing provisions relating to these offences. The offence of threats typically only covers serious threats, such as death threats.¹³⁸ It does not capture conduct that does not involve such a concrete threat but is nevertheless threatening in light of the context of the case. As discussed, threats can be subtle or implied as a domestic violence victim knows what can happen due to the history of abuse. The offence of assault is also ill-suited to capture domestic psychological violence when it only criminalises causing physical harm. However, this limitation is not present in every jurisdiction. Some assault offences also criminalise causing mental harm.¹³⁹ Such an offence could capture many forms of domestic psychological violence, particularly if it covers mental harm caused by a course of conduct. Nevertheless, focusing on a certain mental impact on the victim also has its drawbacks. For one, an assault offence can establish a relatively high threshold by requiring a mental disorder or long-term mental health impairment.¹⁴⁰ This would exclude causing ‘mere’ feelings of fear, anxiety and stress which do not amount to a recognisable psychiatric illness or such a health impairment. It might also be difficult to prove that mental harm is caused by several more or less interrelated incidents that are seemingly minor on their own and are spread over a certain period.¹⁴¹ In addition, an offence which requires actual or noticeable mental harm might not cover a psychologically abusive pattern consisting of manipulative, deceptive or covert acts. A domestic violence victim might be unaware of such a pattern, but it can still seriously impair her or his psychological integrity. This does depend on the conceptualisation of this legal interest.¹⁴² Delving extensively into this issue would exceed the article’s intended scope. It suffices to state that psychological integrity can be broadly defined as encompassing not only someone’s mental health or mental well-being but also notions such as dignity, privacy and autonomy. Similarly, while the ECtHR has not explicitly defined psychological integrity in its case law, it is clear that the Court does not only connect this interest to someone’s mental well-being but also to other values such as private life.¹⁴³

As mentioned, the limitations of utilising generic offences such as threats and assault to prosecute domestic psychological violence still exist if domestic violence is criminalised as a form of these offences. The presence of penalty-enhancing provisions is meaningless when the base or underlying offence does not cover forms of domestic psychological violence that should be criminalised. And even if national generic offences do capture such forms, it is doubtful whether penalty-enhancing provisions are necessary. For instance, it could be that offences such as threats, coercion, insults, stalking and assault already enable the imposition of a sanction that adequately reflects the severity of acts of domestic psychological violence. There could also be sentencing guidelines indicating that a higher sanction is warranted if the relevant conduct is perpetrated within a domestic setting. In this situation, the benefit of criminalising domestic psychological violence as a form of such generic offences must perhaps be sought in the qualification or labelling of the conduct (for instance as ‘threats against a family member’ instead of ‘threats’). However, it seems unlikely that the Court would oblige State Parties to enact specific criminal law provisions relating to domestic violence only to ensure fair labelling.

In light of the above, when it comes to the criminalisation of domestic psychological violence, it seems more appropriate to enact a distinct domestic violence offence than to criminalise domestic violence as a form of other offences. Depending on the definition of domestic violence, such a distinct offence can adequately cover domestic psychological violence.¹⁴⁴ Admittedly, it is probably easier to enact penalty-enhancing provisions as this does not require designing a new (and potentially broad) offence that adequately fits within a national criminal law system. Still, a distinct domestic violence offence has the crucial benefit of not relying on the limited scope of other offences that were not designed with the specific nature and dynamics of domestic (psychological) violence in mind.

C. Expanding the Coercive Power of the State

When it comes to broadening the scope of national criminal law to capture forms of domestic psychological violence, it is important to note that criminal justice intervention might not always be in line with the will and interests of a domestic psychological violence victim. This is especially so considering that this form of violence can occur at a relatively early stage of an abusive intimate relationship.¹⁴⁵ For instance, an intimate partner might demonstrate coercive and controlling conduct but not (yet) be physically abusive.¹⁴⁶ In the context of coercive control, researchers have indicated potential negative consequences of criminal justice intervention, such as increasing the dangerousness of the victim’s situation or aggravating her or his suffering. Kuennan has noted, for instance, that a measure such as a criminal protection order can constitute ‘state-imposed, de facto divorce, wreaking havoc in the lives not just of women who love their partners and want to preserve their relationships, but of men who want the same but are subject to criminal conviction for remaining in contact with the victim’.¹⁴⁷ In the same vein, Barlow and Walklate consider that for certain victims ‘the coercive and controlling behaviour of a partner may be seen as more tolerable than the coercive and controlling responses of the state and its authorities’.¹⁴⁸ For instance, for some victims ‘offending family honour may be a more traumatic prospect than living with the violence in their lives’.¹⁴⁹ In addition, there is a risk that the perpetrator will use the criminal justice system to continue and even expand the control over the victim.¹⁵⁰ As Reeves et al. state, a perpetrator can try to have the victim identified as the predominant aggressor by, for instance, manipulating police officers into believing that he is the victim, portraying the victim as mentally unwell or inflicting wounds onto himself.¹⁵¹

The ECtHR pays little attention to the potential negative consequences of prosecuting domestic (psychological) violence. Instead, it primarily focusses on the victim’s vulnerability as well as the public interest in prosecution. The Court considers in Volodina v Russia (No. 1), for instance:

It reiterates that the provisions of Russian law that make a criminal investigation strictly dependent on the pursuance of complaints by the victim are incompatible with the State’s obligation to punish all forms of domestic violence. Having regard to the particularly vulnerable situation of victims of domestic violence, the legislative framework must enable the authorities to investigate domestic-violence cases of their own motion as a matter of public interest and to punish those responsible for such acts … .¹⁵²

So, domestic violence should not be criminalised in such a way that prosecution is only possible based on a complaint, request or other initiative of the victim.¹⁵³ Furthermore, if there is a criminal complaint but the victim withdraws it, the Court believes that prosecution should sometimes continue as a matter of public interest. The Court states in Tunikova and Others v Russia, for instance, that ‘[i]f the victim withdraws the complaint, … the legislation should require the authorities to consider what the reasons for withdrawing the complaint were and whether the seriousness of the attacks would require them to pursue the proceedings’.¹⁵⁴ The phrase ‘reasons for withdrawing the complaint’—which is incidentally not specified by the Court—leaves room for assessing the victim’s situation and considering the potential interest of the victim not to set in motion the criminal justice machinery.¹⁵⁵ Still, it seems that a balancing of interests is required and if acts of domestic violence are grave enough, the public interest in prosecuting them should prevail over the private interests of the victim.¹⁵⁶ Under which circumstances this is required when it comes to domestic psychological violence, is unclear.

4. CONCLUSION

In the discussed case law, the ECtHR seems to recognise the contextual and cumulative nature of domestic psychological violence. This form of violence can involve a course of conduct that has a serious cumulative psychological impact on a victim, even if the incidents that make up the course appear minor or innocuous in isolation. The violence can reach the threshold of Article 3 or Article 8 of the ECHR and be serious enough to warrant criminal law protection. In respect of this last part, an issue arose in the context of Article 3 as there exists some ambiguity about whether instances of domestic psychological violence that reach the threshold of this provision should usually or always be criminalised. It is unclear what the correct interpretation should be. As argued, it might be that the Court uses absolute language to merely emphasise that certain forms of domestic violence, such as domestic psychological violence, should not by default be excluded from receiving criminal law protection. This would mean that State Parties have some margin of appreciation under Article 3 in regulating domestic psychological violence; not every instance of domestic psychological violence necessitates criminal law protection. In the context of Article 8, such a margin clearly exists and is even greater as its threshold is lower than the threshold of Article 3. Still, if the gravity of domestic psychological violence increases, it is more likely that criminalisation is called for to comply with the obligations under Article 3 or Article 8. In assessing the gravity, certain aggravating factors relating to the domestic violence context should be considered, such as the vulnerability of the victim, the potential systematic nature of the abuse and the fundamental interests that could be at stake, like autonomy, freedom and dignity. These factors increase the severity of domestic psychological violence, which means that criminal law protection is more likely warranted. Conversely, if they are absent – for instance, someone’s psychological integrity is impaired by less serious, isolated incidents – it appears that criminalisation is not necessarily called for.

The Court believes that domestic violence can be criminalised in different ways. It has approved two different legislative approaches: criminalising domestic violence as a distinct offence and criminalising domestic violence as an aggravating form of other offences, such as threats and assault. The latter approach appears to be ill-suited to capture forms of domestic psychological violence that involve a course of conduct consisting of relatively minor incidents because such other offences generally have a high threshold and focus on incidents or physical harm. It seems more appropriate to enact a distinct domestic violence offence that is designed to capture a course of conduct and covers, among other types of violence, psychological violence. It derives from the Court’s case law that such an offence should not make prosecution wholly depend on any kind of initiative of the victim, such as a criminal complaint. Additionally, if there is a complaint but the victim withdraws it, prosecution should sometimes continue nonetheless as a matter of public interest. It must be stressed in this regard, however, that criminal justice intervention is not always in the interest of the victim and can have unintended consequences such as increasing the victim’s suffering.

This article focussed on acts of domestic violence which impair an individual’s psychological integrity. Of course, someone’s psychological integrity can be seriously impaired in other settings as well. Even the discussed aggravating factors are not only relevant within a domestic violence setting. Considering that the ECtHR primarily focusses on the gravity of certain conduct when it comes to the obligation to enact criminal provisions, it is also conceivable that the Court would require criminal law protection concerning serious non-domestic forms of psychological violence. This would be in line with the obligation established in Article 33 of the Istanbul Convention.¹⁵⁷ This provision obliges State Parties to criminalise psychological violence in every setting. Importantly, these two human rights instruments seem to require a level of criminal law protection of someone’s psychological integrity that is generally not provided by State Parties. This should be a stimulus for State Parties to review to what extent intentionally seriously impairing someone’s psychological integrity is criminalised under their national criminal laws, in particular when the impairment is caused by a psychologically abusive course of conduct consisting of seemingly minor incidents.

ACKNOWLEDGMENTS

I am grateful to K.K. Lindenberg, L.J.J. Peters and H.D. Wolswijk for providing extensive feedback on earlier drafts of this article. Any remaining errors are my own.

Footnotes

Author notes