The effectiveness of domestic violence investigation: standards of the Istanbul Convention and the ECHR case law

The article is devoted to the study of the effectiveness of domestic violence investigation according to the standards of the Istanbul Convention and the ECHR case law. The author emphasises the specifics of criminal proceedings on domestic violence in the legal and psychological contexts. The author describes the standards of pre-trial investigation under the Istanbul Convention and the ECHR case law (adequacy of competence, thoroughness, promptness, involvement of the victim in the investigation, independence, and consideration of the nature of domestic violence). Particular attention is paid to the relevance (adequacy of competence), thoroughness and involvement of the victim (victim-centred approach). It is proved that the Istanbul Convention and the ECHR case law demonstrate the need for effective investigation of domestic violence and consideration of the interests and needs of the individual. It can be difficult to strike the right balance in practice, because, on the one hand, domestic violence is no longer considered a purely ‘family matter’, and the perpetrator, accustomed to impunity, will continue violent acts, and not only as domestic violence. On the other hand, the investigation must take into account the interests of the victims, who cannot be forced to initiate criminal proceedings, give testimony or explanations, submit evidence and generally participate actively in the investigation. However, the latter does not in any way negate the state’s obligation to conduct an effective investigation, thorough and diligent collection of evidence, which obviously cannot be limited to verbal information provided by victims. This problem will become even more acute if Article 126-1 of the CC of Ukraine is removed from Article 477 of the CPC of Ukraine. Accordingly, at the methodological level, it should be recognised that a balance can be achieved when, with the victims being given an accessible explanation of the consequences, including negative ones, of their choice not to actively participate in the evidence, the prosecution takes all possible and appropriate measures to collect and verify evidence to prove domestic violence, and provides a comprehensive assessment, without giving priority at the initial stage of the investigation to those facts that allow closing the criminal proceedings. In the regulatory aspect, in order to ensure the fulfilment of obligations under Article 56 of the Istanbul Convention, Article 232 of the CPC of Ukraine should be amended (similar to Article 336(7) of the CPC of Ukraine).