Effective Criminal Investigations in Combating Domestic Violence and the ECtHR: Prima Ratio v. Ultima Ratio?

Abstract

The European Court of Human Rights (ECtHR) has paved a long and unique way throughout Europe and even beyond Europe with respect to the protection of victims, in particular, of victimized women in cases of domestic or partner violence — dating back to its beginnings in the 1980s. As such, the landmark case Opuz v. Turkey symbolizes this path regarding efforts relating to the protection of victims of domestic violence. The Opuz judgment represents a concrete outcome of the ECtHR’s conceptualization as positive (procedural) obligation of the state in terms of domestic violence cases. This study considers the ECtHR’s conceptualization as a core proposition for conducting effective criminal investigation of domestic violence. This represents the very point where criminal law comes in as prima ratio, although the ultima ratio character of criminal law has been prominently emphasized due to the concerns regarding the overuse of criminal law. Indeed, where the tools of criminal law is necessary, underuse of criminal law which leads to impunity is equally problematic as its overuse. Ineffective criminal investigation may lead to impunity or leniency regarding the punishment of perpetrators, which is a common concern in cases of domestic or gender-based violence against women. These cases typically entail challenging features, potential obstacles, with respect to conducting an effective criminal investigation such as victim’s vulnerability, that require a prompt response and reasonable and appropriate measures to protect victim and, inter alia, the risk of losing evidence. The ECtHR does not define what constitutes an effective investigation for these cases, rather it reflects on the matter in each concrete case. This study focuses mainly on some of these features that arise in the realm of state responsibility and prevent the prima ratio application of criminal law for these cases. As such, the study provides remarks of the Court in the Opuz judgment regarding these features. Keywords: Effective criminal investigation, domestic violence, female victims, positive obligation, prima ratio application, ultima ratio principle.