CASE OF VOLODINA v. RUSSIA (No. 2)

THIRD SECTION

CASE OF VOLODINA v. RUSSIA (No. 2)

(Application no. 40419/19)

JUDGMENT

Art 8 • Private life • Positive obligations • Authorities’ failure to protect victim of domestic violence from repeated acts of cyberviolence and to bring perpetrator to justice

STRASBOURG

14 September 2021

FINAL

14/12/2021

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

VOLODINA v. RUSSIA (No. 2) JUDGMENT

In the case of Volodina v. Russia (no. 2),

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Paul Lemmens, President, Dmitry Dedov,

Georges Ravarani, María Elósegui, Darian Pavli, Anja Seibert-Fohr,

Andreas Zünd, judges,

and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 40419/19) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 July 2019;

the decision to give notice of the complaints concerning the taking of measures against online harassment to the Russian Government (“the Government”) and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 24 August 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the State’s obligation to protect the applicant from acts of cyberviolence, including the publication of her intimate photographs without consent, stalking and impersonation, and to carry out an effective investigation into these acts.

THE FACTS

2.The applicant is Ms Valeriya Igorevna Volodina; she is a Russian national who was born in 1985 and lives in an undisclosed location in Russia. In 2018, fearing for her safety, she obtained a legal change of name (see Volodina v. Russia, no. 41261/17, § 39, 9 July 2019). Her old name is used in the judgment to protect her safety. The applicant was represented before the Court by Ms Vanessa Kogan, director of the Stichting Justice Initiative, a human-rights organisation based in Utrecht, the Netherlands.

3.The Government were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov.

4.The facts of the case, as submitted by the parties, may be summarised as follows.

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CIRCUMSTANCES OF THE CASE

5.In November 2014 the applicant began a relationship with Mr S., an Azerbaijani national. After their separation in 2015, S. threatened her with death or bodily injuries; he abducted and assaulted her on several occasions. For details, see Volodina, cited above, §§ 10-36.

6.In June 2016 the applicant’s brother told her that her account on the Russian social media platform VKontakte had been hacked. Her invented name had been replaced with the real name; her personal details, a photograph of her passport and her intimate photographs had been uploaded to the account. Classmates of her twelve-year-old son and his class teacher had been added as friends. The applicant attempted to log into her account only to discover that the password had been changed.

7.On 22 June 2016 the applicant complained to the Ulyanovsk police about a breach of her right to privacy. The police took a statement from the applicant’s brother. He said that he had talked to S. on the phone and that S. had admitted that he had hacked into the applicant’s email account and sent obscene messages to her contacts. He had done so out of desperation because he had “no good way of bringing [her] back”. Claiming that they were unable to locate S. in their jurisdiction, on 21 July 2016 the Ulyanovsk police forwarded the matter to the police in the Krasnodar Region where S. had registered his residence. On 29 August 2016 the Krasnodar police sent the file on to the Samara Region where S. had moved. On 30 September 2016 the Samara police returned the case file to their colleagues in Ulyanovsk.

8.On 7 November 2016 the Ulyanovsk police declined to institute criminal proceedings on the grounds that the information had been made public on social media rather than in the media. The supervising prosecutor set that decision aside as unlawful because S. had not been interviewed. On 2 May 2017 the police again declined to open a criminal case, finding no indication that S. had collected or disseminated information about the applicant’s private life. The decision stated that it had not been possible to locate S. who had no Russian nationality or proof of residence in Russia. On 1 February 2018 the supervising prosecutor annulled that decision. He directed the police to locate and interview S., to examine his electronic devices and records of his phone calls to the applicant.

9.On 6 March 2018 the Ulyanovsk police opened a criminal investigation under Article 137 of the Criminal Code. Over the following months, police investigators interviewed the applicant and S., first separately and later face-to-face, took statements from the applicant’s family members, seized and examined their mobile phones, obtained logs of phone communications from mobile providers, received information from the company operating the VKontakte site, and talked to a social media expert.

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10.In February, March and September 2018, new fake profiles in the applicant’s name appeared on VKontakte and Instagram. The profiles used her intimate photographs and personal details.

11.On 13 August and 19 September 2018 the applicant complained to the Ulyanovsk police that S. had sent her death threats via social media and Internet messengers. She enclosed printouts of messages and asked the police to open a criminal case under Article 119 of the Criminal Code (threats of death or bodily injury) and to grant her protection. On 3 January 2019 the police refused to open a criminal case on the grounds that the threats had not been “real”.

12.Following the creation of court orders prohibiting certain forms of conduct (see paragraph 32 below), on 28 September 2018 the applicant asked the investigator to seek an order which would prevent S. from using the Internet, contacting her by any means including via social media, e-mail or Internet messengers, or approaching her or members of her family. On 18 October 2018 the investigator replied that, on account of his independent standing in the proceedings, the parties could not dictate him what action needed to be taken. He refused her request on the grounds that “measures of restraint could be applied to suspects in exceptional circumstances only”. By judgment of 27 November 2018, as upheld on appeal on 21 January 2019, the Ulyanovsk courts dismissed the applicant’s complaint about the investigator’s decision on the grounds that it had been issued by a competent official within his scope of discretion.

13.On 12 December 2018 the applicant complained to the Kuntsevskiy District Court in Moscow that the Kuntsevskiy district police had not responded in any way to her report of a tracking device she had found in her

bag two years previously (see Volodina, cited above, §§ 28-29). On 26 December 2018 the District Court found no fault with the actions of the district police because the deputy chief had forwarded the applicant’s report to the Special Technical Measures Bureau shortly upon its receipt. On 28 February 2019 the Moscow City Court dismissed, in a summary fashion, her appeal against the District Court’s decision.

14.On 19 January 2019 the Ulyanovsk police suspended the investigation into the fake social media profiles. They established that two fake profiles had been created in February and March 2018 using IP addresses and phone numbers registered in Azerbaijan. According to the billing information of his phones and the police database, on critical dates S. had been in the Tambov Region in Russia. The investigators decided to ask their Azerbaijani counterparts to obtain records of phone communications from the Azerbaijani number.

15.Counsel for the applicant applied for judicial review of the investigators’ decisions. She complained that the criminal case had been opened following a two-year period of inactivity after the first report, that the fake profiles created in 2016 had not been investigated, that S.’s friends

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and connections had not been identified or interviewed, that communications between S. and the phone number in Azerbaijan had not been evaluated, and that the collected evidence had not been made available to the applicant.

16.On 25 June 2019 the Zavolzhskiy District Court in Ulyanovsk set aside the 19 January 2019 suspension decision as unlawful and premature in so far as it did not fix a time-limit for receiving a reply from Azerbaijan and as it prevented the applicant from requesting the investigator to follow the leads which she believed needed to be explored. On 19 August 2019 the Ulyanovsk Regional Court quashed the District Court’s decision in respect of the applicant’s complaints which had been granted. It held that the law did not require the investigator to make the case file available to the applicant until the investigation had been completed, and that the suspension decision had been lawful because “the investigator had ... given due consideration to all the circumstances” underlying that decision.

17.On 14 September 2019 the Kuntsevskiy district police in Moscow refused to open a criminal investigation into the tracking device. The decision listed the constituent elements of an offence under Article 137 of the Criminal Code and stated that the device had been identified as a Russian-made GPS tracker which was legally available for purchase. As the applicant had thrown away the device and the SIM card it contained, it was impossible to identify the owner. Her claim that “no one but [S.] could have planted the device” was speculation which could not be accepted as evidence. As there was no “objective evidence incriminating [S.]”, the criminal case against him could not continue.

18.On 20 October 2019 the owner of the telephone number registered in Azerbaijan which had been used for the fake social media accounts was established and questioned. The applicant was not informed of this development. Nor was it mentioned in the investigator’s subsequent decision of 25 December 2019 to suspend the criminal proceedings due to the failure to identify the perpetrator.

19.On 18 May 2020 the applicant was questioned about the fake profiles which had appeared in 2018 on Instagram and VKontakte. The investigator asked the applicant if she knew certain named individuals in Azerbaijan and whether she would accept a polygraph test. She said she did not know these people and refused the test.

20.On 14 October 2020 the Ulyanovsk police closed the criminal case under Article 137 of the Criminal Code. According to the decision, it was established that in February and March 2018 S. had created fake profiles on VKontakte in the applicant’s name and had published nude photos of her without her consent. The published photos had been found on his phone during an inspection. On 13 October 2020 S. had filed a motion to discontinue the proceedings because the limitation period had expired. The

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motion had been granted: as the offence under Article 137 was of lesser gravity, the two-year period of limitation had expired in March 2020.

21. The decision was not communicated to the applicant or her lawyer. On 14 April 2021 she became aware of its existence from the Government’s Action Plan submitted to the Committee of Ministers in the framework of execution of the Volodina group of cases.

RELEVANT LEGAL FRAMEWORK

I.UNITED NATIONS

22.The 2015 report by the UNESCO-ITU Broadband Commission for Digital Development’s Working group on Broadband and Gender, “Cyberviolence against Women and Girls: A World-wide Wake-up Call”1, observes that “violence online and offline, or ‘physical’ violence against women and girls (VAWG) and ‘cyber’ VAWG, feed into each other” and that “abuse may be confined to networked technologies or may be supplemented with offline harassment including vandalism, phone calls and physical assault”.

Forms of cyber VAWG fall into six broad categories which include “hacking”, “impersonation” (the use of technology to assume the identity of the victim in order to embarrass or shame her, e.g., by sending offensive emails from the victim’s email account), “surveillance/tracking” (stalking and monitoring a victim’s activities either in real-time or historically; e.g., GPS tracking), “harassment/spamming” (the use of technology to continuously contact, annoy, threaten, and/or scare the victim), “recruitment” (luring potential victims into violent situations), and “malicious distribution” (manipulating and distributing defamatory and illegal materials related to the victim; e.g., threatening to or leaking intimate photos/video). In addition, some terminology is particular to cyber VAWG: thus, “revenge porn” consists of an individual posting intimate photographs of another individual online with the aim of publicly shaming and humiliating that person, and even inflicting real damage on the target’s “real-world” life, such as getting them fired from their job.

Five characteristics that distinguish cyber VAWG are: “anonymity” (abusive person can remain unknown to victim), “action at a distance” (abuse can be done without physical contact and from anywhere), “automation” (abusive actions using technologies require less time and effort), “accessibility” (variety and affordability of many technologies make them readily accessible to perpetrators), and “propagation and perpetuity” (texts and images multiply and exist for a long time or indefinitely).

1 https://en.unesco.org/sites/default/files/genderreport2015final.pdf. Last accessed on the date of the judgment.

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23.A report by the UN Human Rights Council’s Special Rapporteur on violence against women, its causes and consequences, on online violence against women and girls from a human rights perspective (A/HRC/38/47, 18 June 2018) has found that online and internet-facilitated forms of violence against women have become increasingly common, particularly with the use of social media platforms and other technical applications (point 12). Technology has transformed many forms of gender-based violence into something that can be perpetrated across distance, without physical contact and beyond borders. All forms of online gender-based violence are used to control and attack women and to maintain and reinforce patriarchal norms, roles and structures and an unequal power relationship (point 30).

Online violence against women may be manifested in different forms and through different means, such as non-consensual accessing, using, manipulating, disseminating or sharing of private data, photographs or videos, including sexualized images (point 34). New among other forms of violence, “revenge porn” consists in the non-consensual online dissemination of intimate images, obtained with or without consent, with the purpose of shaming, stigmatising or harming the victim (points 33 and 41).

The Special Rapporteur formulated a number of recommendations for States, including the recommendations that States should clearly prohibit and criminalise online violence against women, in particular the nonconsensual distribution of intimate images and the threat to disseminate such images (point 101), and that States should allow victims to obtain protection orders to prevent their abusers from posting or sharing intimate images without their consent (point 104).

II.COUNCIL OF EUROPE

24.The Cybercrime Convention Committee’s Working Group on cyberbullying and other forms of online violence, especially against women and children, carried out a mapping study on cyberviolence2 and released its findings on 9 July 2018. The Working Group agreed to define “cyberviolence” as “the use of computer systems to cause, facilitate, or threaten violence against individuals that results in, or is likely to result in, physical, sexual, psychological or economic harm or suffering and may include the exploitation of the individual’s circumstances, characteristics or vulnerabilities” (point 2.1.1). Acts of cyberviolence may take a variety of forms ranging from ICT-related violations of privacy, such as stalking,

identity theft and impersonation, to cyber-harassment which comprises

2 https://rm.coe.int/t-cy-mapping-study-on-cyberviolence-final/1680a1307c. Last accessed on the date of the judgment.

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“revenge porn”, to cybercrime (point 2.1.2). With regard to “revenge porn”, the study observed that “the phenomenon predominantly involves a partner in an intimate relationship disseminating the material in order to humiliate or intimidate the victim” and has been recognised as a crime in several jurisdictions (point 2.1.2.1.2).

Investigation and prosecution of cyberviolence was confronted with many challenges, including limited help by law enforcement: “Cyberviolence may involve methods that are particularly difficult for police forces to investigate, and victims may be told – correctly or incorrectly – that there is nothing that law enforcement can do. Like any other form of violence against women, online violence against women is often overlooked because of a lack of awareness and gendered understanding of violence. Victims’ experience are often considered as ‘incidents’ rather than patterns of behaviour, and victims are blamed for the violence they face” (point 2.3).

III.RUSSIA

A. Protection of private life: civil law

25.The concept of “private life” embraces “the sphere of human life and activity which belongs to the particular person, exclusively concerns that person and is not subject to public or State control so long as it is not contrary to law” (Constitutional Court’s decisions no. 248-O of 9 June 2005, no. 158-O-O of 26 January 2010, and no. 1253-O of 28 June 2012).

26.Article 150 of the Civil Code (“Intangible assets”) stipulates that a person’s dignity, honour, goodwill, business reputation, private life and family secrets constitute inalienable intangible assets. A court may recognise an infringement of the person’s intangible assets and prevent actions that infringe or threaten to infringe them.

27.Article 151 (“Compensation for non-pecuniary damage”) provides that a person who infringes another’s intangible assets may be ordered by a court to pay financial compensation in respect of non-pecuniary damage.

28.Article 152.1 (“Protection of a person’s image”) establishes that a person’s image may only be published or used with the consent of the person concerned. If an image is shared on the Internet without consent, the person may demand that it be removed and no longer used.

29.Article 152.2 (“Protection of a person’s private life”) prohibits the collection, storage, dissemination and use of information about a person’s private life, including his or her origins, place of stay or residence, private or family life, without the consent of the person concerned.

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B.Protection of private life: criminal law

30.Article 137 of the Criminal Code (“Breach of privacy”) establishes that illegal collection or dissemination of information on the person’s private life constituting his or her personal or family secrets, without the consent of the person concerned, or else dissemination of such information in public speech, in a work of art on public display or in the mass media, is an offence punishable by a fine or up to two years’ imprisonment.

31.The Plenary Supreme Court of Russia’s guidance on the judicial application of criminal-law provisions for the protection of constitutional rights and freedoms (Resolution no. 46 of 25 December 2018) indicates that, for the purposes of Article 137 of the Criminal Code, the collection of information on the person’s private life must be understood as comprising the illegal obtaining of information by any means, such as surveillance, wiretapping, interviewing other persons, including with the use of audio, video and photorecording equipment, and copying, stealing or otherwise acquiring documents. Dissemination of information on the person’s private life consists in communicating or disclosing it to one or more persons orally, in writing or otherwise, including by means of handing over the materials or publishing the information on ICT networks, such as the Internet.

C.Criminal procedure

32.In April 2018, a new measure of restraint in criminal proceedings in the form of a court order prohibiting certain conduct (запрет определенных действий) was introduced in Article 105.1 of the Code of Criminal Procedure. The court may, on an application from the investigator in charge of the case, issue an order requiring a suspect or defendant in criminal proceedings to appear when summoned, to abstain from certain conduct and to comply with the restrictions imposed (part 1). An exhaustive list of types of conduct which may be restricted includes a prohibition to leave the place of residence, a prohibition to visit or approach certain places or to attend certain events, a prohibition to communicate with certain persons, and a prohibition to receive or send letters, to use means of communication or the Internet (part 6).

THE LAW

I.ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

33.The applicant complained under Article 8 of the Convention that the Russian authorities had failed to protect her against repeated acts of online

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