District courts are required to initiate cases of domestic violence even without the participation of investigative bodies

District courts are obliged to initiate criminal cases of private prosecution based on the victim’s statement of beatings, even without the participation of investigative bodies, the Constitutional Court (CC) clarified on Thursday. At the same time, he did not begin to audit the institution of private prosecution itself, despite the fact that the voices of supporters of active state participation in protecting victims of domestic violence are becoming louder.

The reason for checking the norms of the Criminal Procedure Code (CPC) regulating the procedure for holding people accountable for beatings was a complaint from Muscovite Galina Baskakova, who suffered from abuse from her ex-husband for several years. The woman tried many times to bring the offender to justice, but the police refused to do so, citing the fact that this was a matter of private prosecution, that is, the victim’s statement should be considered directly by the court. However, the Babushkinsky District Court of Moscow was in no hurry to do this and several times rejected Ms. Baskakova’s applications under various pretexts. Higher courts confirmed the validity of the refusal – in particular, referring to the fact that such cases should be initiated by the investigative bodies.

“We spent more than two years trying to initiate a criminal case,” the victim’s lawyer, Maria Nemova, told Kommersant. The law, she notes, is formulated in such a way that the courts and police have the opportunity to endlessly “football” her client’s appeals. This is a common problem for private prosecution cases, the lawyer points out: they are always initiated with great difficulty, and the evidence for them must be collected by the victim himself.

As a result, in the Constitutional Court, Galina Baskakova (her interests were represented by lawyers from the Consortium of Women’s Non-Governmental Organizations) challenged the inconsistency of the Constitution with the provisions of Articles 20 (types of criminal prosecution), 31 (jurisdiction), 147 (initiation of a criminal case of private and private-public prosecution) and 318 (institution of a criminal case). cases of private prosecution) of the Criminal Procedure Code as not ensuring effective investigation of cases of domestic violence.

The Constitutional Court concluded that these norms do not contradict the Constitution. As follows from the resolution, the problem was that in 2018 the legislator changed the jurisdiction of cases of private prosecution in relation to beatings: from magistrates they were transferred to the jurisdiction of district courts. At the same time, in the Code of Criminal Procedure the procedure for proceedings in cases of private prosecution was still established only for magistrates, which allows district courts to refuse applicants. However, in the current regulatory system, this procedure also applies to district courts, the Constitutional Court pointed out: otherwise it would lead to the impossibility of proceedings in such cases, leave victims of domestic violence without timely judicial protection and create the preconditions for new criminal attacks. Resumption of criminal prosecution of Galina Baskakova’s offender is no longer possible due to the expiration of the statute of limitations, but she has the right to compensation, the Constitutional Court’s resolution notes.

Ms. Baskakova will not be able to take advantage of the clarification of the Constitutional Court, but many other victims will have access to justice, hopes lawyer Mari Davtyan, who also represented the interests of the applicant. “We are only saddened by the fact that we asked the Constitutional Court the question of how permissible private prosecution in cases of domestic violence is in principle,” the lawyer notes. “And he did not answer this question.”

Meanwhile, not only lawyers have questions about the institution of private prosecution: in 2021, the Supreme Court (SC) made a proposal to transfer cases of domestic violence to the category of cases of private-public prosecution. As noted in the explanatory note to his bill, at present, the private procedure for criminal prosecution does not meet the needs of effective criminal legal protection of human rights and freedoms, and also “is not consistent with state policy in the field of ensuring personal security.” However, last year the State Duma refused to consider this project, and the Supreme Court made no further attempts to introduce it. According to a Kommersant source in the government, the initiative was blocked by the Ministry of Internal Affairs, which fundamentally disagreed with this approach. The Ministry of Internal Affairs’ response to Galina Baskakova’s complaint to the Constitutional Court also notes that the private procedure for criminal prosecution provides citizens with speedy access to justice, and in the applicant’s case there was a “special case of the court’s incomplete implementation of its powers.”

Anastasia Kornya