CYIL vol. 14 (2023)

CYIL 14 (2023) THE CONCEPT OF DUE DILIGENCE IN THE CONTEXT OF VIOLENCE AGAINST WOMENS… It is common for victims to postpone or completely negate filing the report. From the author’s experience, only a handful of victims of domestic violence drafts a criminal complaint as they prefer to resolve the situation through institutes of family law. They tend to be afraid of the perpetrator or may not know their rights or ways to get help. It also happens that victims retract their reports, either out of fear or after pressure and manipulation from the perpetrator. It is certainly not common for a victim of domestic violence to immediately turn to the police after the first incident. This process may take time, during which violence tends to escalate. At the time when the state learns about the risk to the victim, it may already be a serious and advanced form of violence. Rarely does the state learn about the danger early enough to at least attempt to prevent the offence in a specific case. 81 Fulfilment of the first condition for activating due diligence is therefore not axiomatic for these victims. The second problematic point is the condition of danger to the victim being “real and immediate,” requiring the same level of threat as in other areas. 82 This bar may be set too high for victims of domestic violence, in terms of its intensity, frequency, and modus operandi. In domestic violence, it often takes a long time for the aggression to aggravate. It typically develops and escalates gradually (but not in a linear manner) as it becomes increasingly difficult for the victim to leave a violent situation. It may take years for it to reach the intensity of real and immediate danger to the victim’s life. Such benchmark also practically excludes victims of psychological and socio-economic violence, whose partners are not physically aggressive, and the authorities might argue that such conduct is not directly dangerous per se, or at least not to their physical health and life. Thus, there are already voices in the ECtHR jurisprudence calling for the need to re-evaluate this standard for the field of violence against women. 83 Specifically, the condition of “reality and immediacy” brings three sub-problems. Firstly, it is the issue of assessing the risk. Such assessment requires high capacities and knowledge, which is an investment not many states globally are willing to make. Recognizing the nature of danger is crucial for undertaking further steps, and it should be done thoroughly with profound expertise. The truly correct approach to assessment requires interest, proactivity, and financial costs. This, however, may be too high a demand for some states as the worldwide reality suggests a reluctance to address this violence altogether. Disregarding the risk assessment can undermine the whole due diligence process and may cause fatal consequences. Secondly, such a requirement can lead to an erosion of the victim’s trust in institutions. It is possible that the victim musters the courage to turn to state authorities, but from the authorities’ perspective, it may still be “too early”. They may evaluate that the risk is not explicitly real and immediate and is perhaps present only as less intense threats or “invisible” psychological violence. Such a victim will likely be dismissed with the suggestion to return only after “something provable happens.” This approach has a devastating impact on victims and their lives and their trust in the system. From the author’s own experience, Czech victims

81 Concurring opinion of judge Pinto de Albuquerque to Valiuliene v Lithuania , op. cit. 82 See Osman v United Kingdom, op. cit., § 116.

83 Concurring opinion of judge Pinto de Albuquerque to Valiuliene v Lithuania , op. cit.: “If a State knows or ought to know that a segment of its population, such as women, is subject to repeated violence and fails to prevent harm of that group of people when they face a present (but not yet imminent) risk, the State can be found responsible by omission for the resulting human rights violations. The constructive anticipated duty to prevent and protect is the reverse side of the context of widespread abuse and violence already known to the State authorities.”

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