Malagić v Croatia

European Court of Human Rights, 17 November 2022. (Application no. 29417/17)

Dissenting views from the judges: does a former perpetrator’s good behaviour justify the suspension of a protection order, or should a fresh, complete risk assessment be undertaken at the request of the victim?

Ms Malagić divorced from her husband, a police officer with access to weapons. She alleged that her husband N.M. had raped her on multiple occasions and

“Had threatened to take away her children or to kill her if she ever reported him to the police because he did not want to lose his job. The State Attorney’s Office sent her statement to the police, pointing out that it contained serious accusations that a number of criminal acts which were to be prosecuted ex officio had been committed, including domestic violence, threats and bodily injury. Accordingly, the police were ordered to conduct further inquiries into whether any other criminal offences had been committed against the applicant.”

N.M. was arrested and remanded in prison for 11 months. Eventually he was released on bail, and a protection order was put in place to require that he stay away from Ms Malagić. Ultimately, he was acquitted of all the charges, and the restraining order was brought to an end. Ms Malagić argued that her safety was potentially at risk without a protection order in place, and on appeal, the Supreme Court agreed with her. However, when a new order was sought in the local court, it was refused, on the grounds that a restraining order had been in place for over two years, during which time, N.M. did not violate the order, therefore the local court decided that there was no longer any need to have a restraining order in place.

What was the decision?

In the majority (4 to 3) decision, the European Court of Human Rights found that there was not a right for victims to appeal against decisions regarding protection orders. The majority noted that: “Although the provisions of both the Victims’ Rights Directive and the Istanbul Convention impose the general obligation to protect the victims of crime, and in particular of domestic violence, from repeat victimisation, intimidation and retaliation, as well as to take into consideration the rights of the victims at all stages of the criminal proceedings they do not go so far as to require the specific right of appeal of victims in matters such as restraining orders or detention imposed against the alleged perpetrator.”

In a dissenting judgment by Judges Chembri Orland, Ktistakis and Derenčinović, they found that:

“The risk assessment standards established by the [European Court of Human Rights] were not followed by the domestic courts either in granting (and extending) the restraining order or in the decision on its termination. In the context of the positive obligation to protect the victims of domestic violence, the failure of the authorities to conduct an autonomous, proactive and comprehensive risk assessment prior to the termination of the restraining order resulted in the victim being placed at imminent risk of recurring violence by the defendant.”

(paragraph 3 of the dissenting judgment)

“The fact that the accused husband was ultimately acquitted of the charges (some of the charges became time-barred) should not detract from the rigorous scrutiny which the State authorities are obliged to conduct, taking due account of the particular context of domestic violence, of the risk of a recurrence of violence for the alleged victim in real time. The outcome of the proceedings and the acquittal of the defendant are of no relevance here because risk assessment as an element of the obligation to protect is not an obligation of result but one of means.” (paragraph 4)

“Good behaviour, as in not breaching an effective protection order in relation to the victim whilst that order is in place or whilst in detention, is not relevant in itself when assessing the risk of future danger. A breach of a protection order entails sanctions, and no further investigation was undertaken to determine whether the accused might foreseeably present a risk once the protection order was no longer in place. Furthermore, it is reasonable to assume that the “good behaviour” of the defendant was the logical consequence of the application of the restraining order.” (paragraph 13)

“As for the passage of time, a protective measure cannot be subject to revocation merely because of the duration of the principal (criminal proceedings). This is as dangerous for the victim as it is illogical. Really, why should the victim have to suffer as a result of the inefficiency of the criminal justice system and why should the defendant, regardless of the presumption of innocence, benefit from it? We note with concern that in this case some of the charges were dismissed owing to the expiry of the statute of limitations: the length of the proceedings in the present case is in contravention of the obligation to investigate and adjudicate in cases of domestic violence without unnecessary delays. It is paradoxical that in a case which concerns the obligation to protect, the domestic authorities were more focused on the psychological and psychiatric assessment of the victim than of the defendant.” (Paragraph 14)

Learning from other institutions

This case cited the Council of Europe Convention on preventing and combating violence against women and domestic violence (known as the “Istanbul Convention”) also the European Union Directive on Victims of Crime.

Relevance

If both the judgment and the dissenting judgment are taken into account, a very practical detail of the rights of victims of gender-based violence is illustrated – what can and cannot be taken into account when assessing a survivor’s safety for the purposes of issuing a protection order. The dissenting judgment referred to the stereotype, that because a perpetrator has not used violence for some months or years, that does not mean that he will not use violence in future. Ms Malagić, the Croatian government and the dissenting judges all emphasised the particular need for assessments regarding safety to take into account the fact that the perpetrator was a police officer.