CYIL vol. 14 (2023)

PETRA PRESSEROVÁ CYIL 14 (2023) Secondly, the state has an obligation to prosecute the perpetrator of the crime. Similar rules apply to prosecution as to investigation – it should be effective, without delays, and taking into account the needs and vulnerability of the victim. 65 Consistent prosecution and punishment of perpetrators of violence against women are crucial for eliminating their systematic impunity. The case law regarding the duty to investigate and the duty to prosecute is rich. 66 The ECtHR confirms the need for independent, professional, rigorous criminal proceedings that respect the victim. 67 For example, it found a violation when state authorities delayed investigating and prosecuting domestic violence until the statute of limitations expired, 68 or when the general societal lax approach to violence against women led to the trivialization of a case by criminal justice authorities. 69 In the context of the Organisation of American States, this duty was further specified as the obligation to provide victims with professional medical and psychological assistance within criminal proceedings, to conduct a sensitive, confidential, and ideally non-repetitive victim questioning, to document all investigative actions, to carefully secure and preserve evidentiary material, and to ensure free access to legal aid for the victim. 70 The CEDAW Committee also noted that even if the state eventually “successfully” prosecutes the perpetrator, it does not mean it automatically fulfilled the due diligence obligation, for example if the proceedings had been conducted insensitively, with delays, or without protective criminal law instruments being available to the victim. 71 Lastly, the victims or their surviving family members, should be provided with access to compensation of the consequences of the offence and the violation of their fundamental rights that it entailed. 72 The compensation does not necessarily have to come directly from the state; it is possible for the state to transfer this obligation to offenders and impose such duty on them. It is necessary to compensate both physical and psychological injuries and damages, loss of earnings, loss of social opportunities, infringement of dignity, as well as all real expenses that the victim had to incur in order to alleviate the consequences of the offence (e.g., costs of medical care, therapy, physiotherapy, relocation, legal representation, and others). 73 The victim is entitled to compensation both for the harm suffered from violence 65 CoE Convention, art. 49. 66 See Judgment of the ECtHR of 09.02.2021 in N. Ç. v Turkey , no. 40591/11; Judgment of the ECtHR of 07.07.2021 in Tkhelidze v Georgia , no. 33056/17; Judgment of the ECtHR of 03.10.2017 in D. M. D. v Romania , no. 23022/13; Judgment of the ECtHR of 11.07.2017 in Ž. B. v Croatia , no. 47666/13; Judgment of the ECtHR of 23.05.2017 in Bălșan v Romania , no. 49645/09; Judgment of the ECtHR of 04.08.2020 in Tërshana v Albania , no. 48756/14, § 157; Judgment of the ECtHR of 28.05.2020 in Z. v Bulgaria , no. 39257/17. 67 Aydin v Turkey , op. cit., § 94; M. C. v Bulgaria, op. cit.; Talpis v Italy, op. cit., § 106; Volodina v Russia , op. cit., §§ 92, 101. 68 Judgment of the ECtHR of 26.03.2013 in Valiuliene v Lithuania , no. 33234/07. 69 Eremia v Moldova , op. cit., § 89. 70 Judgment of the IACtHR of 30.08.2010 in Fernández Ortega and others v Mexico , § 194; Judgment of the IACtHR of 24.06.2020 in Guzmán Albarracín and others v Ecuador ; Judgment of the IACtHR of 19.05.2014 in Veliz Franco and others v Guatemala ; Velásquez Paiz and others v Guatemala, op. cit. , § 133, 168; Report of the IACHR no. 51/13 of 14.03.2006 in Paloma Angélica Escobar Ledezma and others v Mexico . 71 See Fatma Yildirim v Austria, op. cit., §§ 7.4, 12.1.6; Tayag Vertido v Philippines, op. cit. 72 See SMITH, R. K. M., op. cit., p. 226; Maria da Penha v Brasil, op. cit., § 61; CoE Convention, art. 30. 73 ECOSOC, 2006, op. cit. , § 84.

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