CYIL vol. 14 (2023)

CYIL 14 (2023) THE CONCEPT OF DUE DILIGENCE IN THE CONTEXT OF VIOLENCE AGAINST WOMENS… measures (although provided by law) due to general and judicial disinterest in the issue of violence against women. It also failed to secure enough shelters for victims. 53 An important question arises in this regard: when exactly is the obligation to ensure violence prevention in an individual case activated? This was extensively discussed by the ECtHR in the key Opuz v Turkey ruling. There, a long-term escalating domestic violence resulted in the murder of the victim’s mother. 54 The ECtHR established a robust obligation of the state to prevent violence in a specific case and set cumulative conditions for its activation, namely: (i) the state learned or should have learned (ii) of the existence of a “real and immediate risk” to the victim and (iii) did not take reasonable and expected measures to protect the victim. In this context, ECtHR also emphasizes the necessity of carrying out a proper risk assessment, which is a prerequisite for adequate evaluation of the situation and potential activation of relevant obligations. 55 ECtHR has repeatedly confirmed these conditions 56 and they have also been adopted by the IACtHR. 57 (Further critique of these criteria follows.) 4.2 From the Moment of Violence Onward: Obligations to Investigate, Prosecute, and Compensate When prevention – both general and individual – fails and a violent crime has occurred, it is necessary to respond. Due diligence requires the state to provide victims with the necessary effective instruments for redress. 58 This requires a functional legal framework that sets rules for resolving the situation and the adequate functioning of criminal justice system organs and procedures alike. 59 Victims should also have the most appropriate and safe conditions for reporting the crime. 60 Firstly, the state is bound to properly investigate the crime. 61 This also stems from the general right to life and the prohibition of torture and inhuman or degrading treatment. 62 The proceedings must be conducted independently, efficiently, without unnecessary delays, and with sensitivity towards the victim. 63 It should consider all the specifics of offences related to violence against women. 64 53 A. T. v Hungary , op. cit., § 9.3. 54 Judgment of the ECtHR of 09.06.2009 in Opuz v Turkey , no. 33401/02, §§ 129 and following. 55 Judgment of the ECtHR of 02.03.2017 in Talpis v Italy , no. 41237/14, §§115, 130; Judgment of the ECtHR of 26.05.2020 in Munteanu v Moldova , no. 34168/11, § 70; Judgment of the Grand Chamber of the ECtHR of 15.06.2021 in Kurt v Austria , no. 62903/15 , §§ 164, 166, and 190. 56 Judgment of the ECtHR of 15.01.2009 in Branko Tomasic v Croatia , no. 46598/06, § 51; Kurt v Austria , op. cit . 57 Campo Algodonero, op. cit., § 280; Judgment of the IACtHR of 31.01.2006 in Pueblo Bello Masacre v Colombia , § 123. 58 ECOSOC, 2006, op. cit., § 37. 59 M. C. v Bulgaria , § 185; ECOSOC, 2006, op. cit., § 50; ECOSOC, 1999, op. cit., § 25. 60 See ECOSOC, 2006, op. cit. , § 82. 61 VAN DIJK, P., VAN HOOF, F., VAN RIJN, A, and ZWAAK, L., (eds.). Theory and Practice of the European Convention on Human Rights . Cambridge: Intersentia, 2006. ISBN-10: 90-5095-616-5, p. 370. 62 Kontrová v Slovakia, op. cit. , §§ 49–52; Campo Algodonero, op. cit., § 293; SMITH, Rhona K. M. Textbook on International Human Rights . Oxford: Oxford University Press, 2005. ISBN: 978-0-19-927416-1 , p. 206. 63 See art. 49 CoE Convention; Judgment of the Grand Chamber of the ECtHR of 25.09.1997 in Aydin v Turkey ,

no. 23178/94; Tayag Vertido v Philippines, op. cit., §§ 3.1; 8.4. 64 M. C. v Bulgaria, op. cit. , § 182; Aydin v Turkey, op. cit., § 98.

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