In two recent judgments involving similar fact patterns, the European Court of Human Rights reached opposing conclusions as to whether there had been a violation of the European Convention on Human Rights: B.A. v Iceland and M.A. v Iceland. These judgments highlight the Court’s inconsistent approach to determining complaints made by women in the context of domestic and sexual violence under Article 3 (prohibition of torture) and Article 8 (right to private life), taken alone and in conjunction with Article 14 (prohibition of discrimination). This inconsistency is in fact a veil for the Court’s imposition of an unduly demanding evidential requirement on victims of violence which leaves them without adequate protection in the law.

In B.A., the applicant lodged a complaint with the police alleging multiple instances of physical, psychological and sexual violence against her former cohabitant between 2011 and 2014. In M.A., the applicant alleged two distinct incidents of physical assault committed by her former boyfriend in 2016, as well as a threat to send intimate photographs of her to her employer in 2017. In both cases, after delays in conducting interviews and taking witness statements, the police discontinued their investigation due to the expiry of the relevant limitation period. These decisions were upheld by the State Prosecutor, save in respect of the threat made by M.A.’s boyfriend, which he admitted to making, that subsequently led to his conviction.

The applicants alleged violation of two aspects of the State’s positive obligations under Articles 3 and 8, taken alone and in conjunction with Article 14. Of present concern is the Court’s analyses of the positive obligation to conduct an effective investigation into ‘arguable’ claims of domestic and sexual violence, which is generally triggered when the allegations can be corroborated by reference to relevant evidence. The Court in B.A. concluded that there had been no violation, while in M.A. it concluded that there had been a violation of Article 8, holding that the domestic authorities had failed to demonstrate the requisite diligence in their investigation. It identified in particular police delays and ‘administrative confusion’ as causing the expiry of the limitation period.

The first difficulty with the Court’s analyses is that in B.A., while acknowledging that victims of violence often hesitate to file charges until some time has passed, the Court still implicitly criticised the applicants for not promptly lodging complaints in so far as this impacted the quantity and quality of the available evidence. Yet, while the Court in M.A. then correctly emphasised that delay to file charges does not absolve the authorities of their obligation to conduct an effective investigation, in B.A. this point was conspicuously absent.

This foreshadowed the Court’s contradictory assessments of the police’s delays in conducting an effective investigation. In M.A., the Court criticised the police for interviewing the perpetrator only eight months after the complaint was lodged. Oddly, however, the Court in B.A. was far less concerned that the police only first interviewed the perpetrator nine months later. This may seem unsurprising since the consequence of the police’s delay in M.A. led to the expiry of the relevant limitation period, whereas in B.A. it was the applicant’s delay that had already time-barred her complaint of physical (but not sexual) violence. But the police could only reach that conclusion on limitation after it had conducted an initial investigation to determine the nature and severity of the alleged instances of violence since, under Icelandic domestic law, more serious criminal offences are subject to longer limitation periods: see Article 81 of General Penal Code No. 19/1940 where seriousness is measured by the maximum custodial sentence for the offence.

Furthermore, while the Court did find a violation of Article 8 in M.A., the facts were exceptional. The applicant had promptly sought medical attention after each incident, took photographs of her injuries, and could identify four witnesses able to testify to having seen the injuries inflicted upon her. With that in mind, it is suggested that the Court’s inconsistent approach is in fact a veil for imposing an unduly demanding evidential requirement on applicants to substantiate allegations of violence before an investigation might be regarded as ineffective. Only in M.A. where the available evidence of violence was overwhelming did the Court make the important clarification that evidential difficulties caused by, for example, a delay to file charges, do not absolve the authorities of their obligation to conduct an effective investigation. Most instances of violence against women occur in the private sphere where there will often be only limited evidence available, as in B.A., such that the obligation to conduct an effective investigation will not be triggered when it is needed most. This leaves women without adequate protection in the law.