Malika Abubakarova, lawyer, Director, Women’s Rights NGO (Grozny)
I know about violence first-hand: two of my friends died at the hands of their husbands. This pushed me to fight to protect other women from meeting the same fate. It is not always about physical or sexual abuse; it can often be psychological or financial abuse or denial of housing or inheritance rights. The perpetrator is not always the woman’s husband; other family members on his side are often involved.
Between 2013 and 2017, Women’s Rights NGO worked on seven cases concerning violence against women and child custody, resulting in complaints to the European Court of Human Rights.1 The complaints were filed by lawyers from of the Russian Justice Initiative (see below). Today, four cases are pending before the Court; in three others, Magomadova v. Russia, Muruzheva v. Russia, and Bopkhoyeva v. Russia, the Court issued judgments in 2018. In the former two cases, the Court upheld the applicant’s right to family life and contacts with her children, and in the third case, the Court found a violation in the authorities’ failure to respond to the plight of a young woman who lapsed into a coma as a result of abuse.
In 2013, lawyers from the Women’s Rights NGO and the Russian Justice Initiative (RJI) were the first in Russia to file a complaint, Timagova v. Russia, with the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee). The applicant had suffered from domestic violence at the hands of her husband for many years. In 2009, her husband assaulted her with a shovel; she sustained injuries to her head, elbow and knee. She reported the incident to the police, and her husband was fined 15,000 rubles (about US$200) for causing minor harm to her health. Then Shema Timagova divorced her husband but was forced to live in the same house, as it was their shared property. Later, Shema’s former husband hit her with an ax, causing serious head injuries. The case went to trial in Russia; the judge found that Shema had “provoked” her husband who attacked her in a state of affect. He was sentenced to nine months in prison and released in the courtroom for time served in pre-trial detention.
Taking cases to international bodies in not an objective for the NGO’s lawyers, and many conflicts are resolved on the national level. It should be noted that taking family disputes to court is extremely challenging in the North Caucasus. Lawyers working with the Women’s Rights NGO have to overcome a great deal of resistance from society, including deeply rooted stereotypes against discussing family problems in the courtroom. Matters related to domestic violence are traditionally a taboo in this culture. We work to expose longstanding problems that no one has addressed before. Quite often, cases do not end with a ruling: women may face obstacles in seeing the ruling enforced, requiring additional action on our part.
Sometimes, we have male relatives come to us seeking advice on behalf of their daughters or sisters. We do not turn them down and suggest potential solutions but always invite the affected woman to come to our office in person. Changing the situation of women in our region is impossible without involving men. We invite them to our events and try to involve them in the discussion of challenges faced by women so they might see things from the women’s perspective. The majority of government officials are men, and our organization needs to ensure their understanding. Their support is necessary to address women’s problems effectively.
Today, we are trying to reach out to as many women as we can, including those who live in villages as well as in the capital city. Since 2017, we have extended our work to other republics of the North Caucasus. Our lawyers have been taking up cases in Ingushetia, Dagestan, Kabardino-Balkaria and North Ossetia-Alania, and we have also signed contracts with local lawyers to mobilize more people for providing legal assistance. In the future, we would like every district and every village to have a lawyer to whom any woman could turn for help.
Olga Gnezdilova, lawyer practicing with the Russian Justice Initiative (Moscow)
Historically, the RJI has been working to defend the rights to life and freedom from torture in the North Caucasus, and it was in this context that we began taking up women’s rights cases. We have RJI lawyers practicing in the region on an ongoing basis. Recently, we have begun accepting cases from other regions but not as many. While there is some specificity to the region, we can observe many of the same issues elsewhere, such as domestic violence or non-enforcement of court rulings concerning child custody and visitation rights after parents’ divorce. There is just a little more corruption in the North Caucasus, and working there can be more of a challenge.
On traditions, domestic violence and children
What makes the situation in the North Caucasus specific is that unwritten traditions often replace formal laws. It can go as far as the authorities (such as bailiffs) asking a woman, why do you insist on enforcing the court’s decision if it contradicts local traditions? Just give up! We have a recording of a conversation between a Chechen Republic Supreme Court judge and our client after the hearing of her case. The judge, rather than rule in favor the mother, granted custody of the children not even to their father (who had died by that time) but to their grandfather. Speaking to the woman after the hearings, the judge told her that she was going against tradition; so she should stop complaining and accept that her four daughters would be raised without her by their grandfather. With our assistance, the woman has taken her case to the ECtHR.
It is commonly believed in the North Caucasus that if the father dies or the parents are divorced, their child must stay with the father’s family. But in fact, opinions differ. We consulted a number of experts, religious scholars and believers; some say that in any case, the child should stay with the mother until the age of seven. But other than word of mouth, no written sources exist on the matter which is therefore interpreted for the benefit of the stronger party. In a number of cases, we have observed how economic factors come into play. Families are usually big and have many children. In one case heard and currently pending judgement in the European Court, the father who was a police officer was killed in the line of duty and left six children with their mother. She was entitled to a large one-off compensation in addition to a monthly survivor’s pension. At first, the father’s relatives were not too eager to take custody of the children but when it came to money, they forced the mother to sign a power of attorney for them to receive the compensation and had her stripped of parental rights to double the benefits received for the children. In addition to other factors, relatives may use custody to access child benefits (usually when the father has died).
The biggest problem that I am still struggling to understand is that the mother not only denied the opportunity to care for the child but she is not allowed to ever contact the child again. Not only cannot she visit the home of her former mother-in-law or ex-husband but she cannot contact her child outside his or her school. Indeed, her children will run away once they see their mother, because if they are seen talking to her they will be punished at home. They are completely isolated from one another, which, of course, is insanely traumatic for everyone involved. On a number of occasions, we participated in enforcement procedures; I observed a child see his mother and start shaking with fear. He is afraid even to look at her, to turn his head in her direction. This is a kind of reaction that even a stranger cannot trigger. Obviously, the child had been through a lot of negative conditioning over a long period of time.
There is another story. In February, the European Court passed its judgement in a case that we brought, Bopkhoyeva v. Russia. A young woman was abducted by a man who wanted to live with her. His mother, however, did not approve and neither did the young woman herself, so she went back to live with her mother (her father had died long ago when she was a child). However, her father’s relatives—seven men—uncles and cousins—took her out into the woods and threatened her with firearms demanding her to tell them whether there had been consummation between her kidnapper and herself. The men ordered her to go back to live with her kidnapper as not to disgrace her own family. She was forced to do so and faced a great deal of pressure from her potential mother-in-law who for some reason was opposed to the marriage. Meanwhile, her kidnapper was sent away to live elsewhere, leaving the situation to his mother’s discretion. Several times, the young woman had to be taken to a hospital in an ambulance, and the last time she was diagnosed with “poisoning with an unknown substance.” She lapsed into a coma, and she has been brain-dead ever since. Doctors see no prospects for her recovery. What happened to her is unknown; the most shocking thing is that no criminal proceedings have been initiated. There were a few pre-investigative checks but essential examinations were not ordered (e.g. it was possible at an early stage to identify the substance in her blood and understand what had happened)—nothing was done at all. There are no suspects, no criminal proceedings and no clear picture of the events.
On the law enforcement performance in domestic violence cases
Is domestic violence more common in the North Caucasus than elsewhere in Russia? It is difficult to collect reliable statistics: in many respects, it is a latent crime, since many women never report it, and even if they do, the police sometimes refuse to register their reports. I can only say that women in central Russia are much more likely to report domestic violence, while for women in the North Caucasus, complaining to the police about a domestic assault can be unacceptable for cultural reasons.
Usually violence is revealed only if a woman is seriously injured or killed. One of our applicants had tried to escape her husband’s beating. She finally succeeded and complained to the police about systematic assaults by her husband. The police questioned him, and he said, yes, I beat her, but she had misbehaved. The police immediately let him go, neither investigating further nor ordering a medical examination of the woman, although her husband had confessed to the crime. A few months later, the woman disappeared without a trace after another domestic conflict. Her body was never found. A criminal case was opened into a suspected murder, yet no suspects have been identified. Her husband is not a suspect in the case. This is the case of Marem Aliyeva—a woman who complained about being beaten while she was still alive, with her husband confirming the beatings to the police.
But in central Russia, cruelty, sometimes extreme, is also common, with no remedies available for stopping or preventing it. Sadly, the infamous saying, “When he kills you, then come by to complain,” applies directly to Russian law. Law enforcement agencies lack the motivation and means to engage in prevention and investigate early incidents of domestic abuse. Impunity causes violence to escalate and leads to dire consequences. Unfortunately, there are no mechanisms in place other than a preventive talk or a fine of five thousand rubles maximum. Administrative arrest is applied only in the rarest of cases.
Recently, there has be a change in legislation, making domestic violence an administrative offense rather than a crime. Before the change, article 116 of the Russian Criminal Code provided that assaults (beatings) committed “out of hooligan motives” should be investigated by police, while in other types of assaults, the victim had to complain to a magistrate’s court, collect evidence and press charges. Domestic violence was a criminal offense subject to private prosecution. Then, as if by a miracle, positive amendments were adopted in July 2016 and remained effective for a few months, whereby assaults by family members were to be investigated by law enforcement agencies based on the victim’s report in a mix between private and public prosecution. Once an assault was reported, the police would launch criminal proceedings, collect evidence and present it in court, and a public prosecutor would press charges. But soon new amendments were passed decriminalizing all types of assaults except those driven by “hooligan motives” or hatred. Now most cases of beating are treated as administrative offenses under the Code of Administrative Offenses. Moreover, there are problems with enforcement: we have received reports from women who attempted to sue their abuser under the Administrative Code provision but were turned down.
In the North Caucasus, despite the declared moral standards, rape, in particular rape of minors, is quite common. While there have been attempts to investigate such cases, the investigators are unable to protect the victim from pressure by the perpetrator and even the victim’s family. No procedures exist to spare the victims the ordeal of criminal investigation. One of the victims we have been helping, an underage girl, began to testify in the courtroom but fainted right there: seeing her rapists triggered her trauma. The judge then said that no hearing was possible without her testimony. And, of course, she is not entitled to any psychological counseling or other support from the state.
On positive examples of judgments and sentences
The question is, what can be considered a positive example? In the Bopkhoyeva case, the European Court found the national authorities’ failure to carry out an effective investigation to be a violation of the right to life under the procedural limb of Article 2. Compensation has been paid to the mother. But such violations must be addressed on a systemic level. We have been monitoring the execution of the European Court’s judgments and preparing reports for the Committee of Ministers of the Council of Europe with recommendations on how to prevent future violations.
Some cases have been resolved at the national level. In Lebedyan (Lipetsk Region), a common-law husband beat his wife for several hours so that she had to be taken to a hospital and died a few days later. A criminal investigation was launched into the causes of the severe injuries leading to death. The court passed a guilty verdict. The deceased woman’s family have lodged an appeal, but even the current sentence of nine years of strict regime prison is a positive result. There was another case in Lebedyan: a former husband assaulted his ex-wife and was convicted and sentenced. We are currently challenging the sentence as too mild, but the fact that the perpetrator has been punished is already positive.
We are now awaiting another ECtHR judgment; in this case, the Court has asked the Government a few general questions to determine whether Russian law is adequate to deal with the problem of domestic violence. Of course, instead of giving a proper answer, the Government only referred to the Code on Administrative Offenses and article 116 of the Criminal Code. We really hope that since the Court has raised global questions about the law, the judgment will state that the law is inadequate and enable us to advocate for changes based on this finding.
On possible future changes
What kind of changes could they be? We would like to see a series of measures, not all of them legislative. As for legislative steps, we need adequate restraining orders. In June 2018, amendments to the Criminal Procedure Code became effective which provide for a new restraining measure such as a prohibition of staying in certain places and contacting certain persons. This is something similar to a restraining order. We are going to request such measures in a number of cases so that the abuser may be forced to stay away from the victim. Many women tell us, “I do not need him to be punished, just do something to make him stay away from me.”
In many cases, abusers pursue their victims: a woman may move to another city but she is still followed. Now a window of opportunity has opened, and we will try to use it. The problem is that this restraining measure can only be enforced against someone already charged with a crime. If a woman says, for example, “he has threatened to kill me,” there must be a criminal investigation opened into the death threats and charges brought against the abuser for any restraining measure to be applied. In the absence of a criminal investigation, even if the situation is dangerous, the police cannot bar him, e.g. from approaching the woman or calling her on the phone.
We need to make this instrument available even at early stages before criminal proceedings are launched. This measure should serve as a warning that someone does not want you to come near them or phone them. Indeed, anyone should have the right to request such protection without having to prove why they want it. Should the other party violate the ban, they will be held liable. The conflict can be resolved at this initial stage without criminal or any other proceedings. Violating the ban would mean that the man is incapable of controlling himself, could be dangerous and needs to be restrained in some other way.
As to the types of punishments and sanctions, we only have imprisonment, compulsory and correctional labor, and some others. No rehabilitation services are available, e.g. for offenders who cannot control their obsession. Some men are basically competent and do not need to be in compulsory treatment but they have a character problem they cannot deal with on their own. It would be helpful for such people to be referred, at the state’s expense, to anger management or behavior modification courses as punishment or perhaps not only as punishment. In fact, the Criminal Code offers a hint by stating that a judge can appoint “other measures.” But there are no mechanisms in place. Such measures cost money and need to be budgeted for and properly organized.
As a non-legislative measure, we need a network of crisis centers where victims can get help. Organizations dealing with domestic violence are far and few between. Most of them are located in big cities out of reach for many victims. Such centers should adopt a comprehensive approach: in addition to legal assistance, victims need to see a psychologist, because they are often too ashamed to speak up and afraid that their family may blame them for the assault. This is the reason why they come to us only when something beyond repair has happened.
What else? These cases must certainly be subject to public prosecution: victims should not be burdened with collecting evidence and pressing charges.
Domestic violence must be criminalized not because “we want them in prison,” but because criminal liability is a different story. It can influence their behavior—and their employment prospects—after release. People are more likely to restrain themselves if there is a risk of criminal liability instead of just a small administrative fine.
Police officers need training: today, they are often reluctant to deal with such cases and not too friendly towards victims; they need to be sensitized. Sometimes, police officers discourage victims from pressing charges and even dictate to them the text of applications for terminating the case based on “reconciliation of the parties.” There is a huge risk that the woman may yield to pressure and withdraw her complaint.
The European Court generally considers the problem of domestic violence and the authorities’ refusal to effectively address it as gender-based discrimination. In our applications to the Court, we argue that the legislation is not adequate but also that our MPs promote this policy as our “spiritual backbone.” This is the message that our politicians transmit to society, and it affects people’s behavior. If domestic violence was publicly condemned, such cases would be less frequent.
On victim and lawyer safety
Our lawyers have on many occasions requested state protection for women who are pursued by their abusers—in the North Caucasus, in Ulyanovsk, in Moscow. Even when state protection was granted, the abuser often managed to bypass it; but more often, protection was denied. In particularly serious cases, victims were forced to leave the country.
Before I came to work with the RJI, my legal practice had mainly focused on torture cases and I sometimes received threats from police officers. But our lawyers working on women’s rights cases today have been receiving even more threats and aggressive messages, e.g. from husbands charged with domestic violence and fathers forced to return the children they have kidnapped. People in the midst of such conflict can find it hard to control their tempera. We never know how seriously to take these threats, those who threatening us are civilians, not police officers, but on the other hand, they may be unaware of the legal consequences of their behavior.
References [ + ]
|1.||↑||The complaints were filed by lawyers from of the Russian Justice Initiative (see below).|