Flawed System or Effective Remedy? Insights from A.E v Bulgaria on Private Prosecution
Giulia Belgrado
Introduction:
At the national level, domestic violence is prosecuted either publicly through a state prosecutor, or privately through the victim themselves, depending on the severity of the act and the injuries sustained as a result. However, as a principle, privately prosecuted offences run the risk of not being persecuted at all, or not being prosecuted effectively. After all, how can an individual with little knowledge and experience of legal processes be expected to bring to term a court case, especially relating to such an intimate and psychologically damaging offence? The European Court of Human Rights (ECtHR) addressed this specific issue when delivering the judgment of A.E. v. Bulgaria, in which the central question was: “Does relying solely on private prosecution as a response to domestic violence undermine the rights of individuals under the European Convention on Human Rights (ECHR)?”. While private prosecution enables victims to independently initiate criminal cases, it also shifts the burden of proof onto them, requiring them to gather evidence to establish the offender’s guilt. This system has persisted in a few states, including Bulgaria, Russia, Lithuania, and Georgia, which will be examined in this post. While in A.E. v Bulgaria, the ECtHR found the state's available domestic remedies inadequate to protect the interests of the applicant, it did not dismiss private prosecution as a valid legal pathway. This blog examines the Court's reasoning and compares it to the practices of the Committee on the Elimination of Discrimination against Women (CEDAW), which critiques private prosecution as inherently flawed, and argues for the ECtHR to take a bolder stance on the matter.
The Case in Short:
The applicant in A.E. v Bulgaria involved a minor subjected to domestic violence at the hands of her adult male partner D.M. with whom she was cohabiting [para 5]. The domestic authorities at the time qualified the acts perpetrated on A.E as minor bodily harm, which are privately prosecuted unless a public prosecutor exercises explicit discretion under Article 49 of the Bulgarian Criminal Procedure Code [para 48,69]. However, in A.E.'s case, the prosecutor opted not to exercise this discretion and let the applicant pursue justice privately.
Despite her injuries and trauma, the authorities failed to prosecute the offender, prompting A.E. to challenge the state under Article 3 of the ECHR [para 63]. The Court found deficiencies with Bulgaria's legal framework and its application. Contrary to state reports, the Court determined that A.E's injuries met the threshold required under Article 3, relying on the extent of her trauma and her young age. Therefore, the Court refused the argument that a certain level of injury is necessary to prompt state intervention [para 90-93]. Within their reasoning, they set out a framework for a remedy to be considered effective:
It must be provided by law, meaning that the state must take active steps to introduce rules of protection in its legal system.
The rule must be effectively enforced;having a rule in of itself does not suffice, it must also be successfully implemented by the relevant authorities [para 73].
While the Court initially upheld its prior stance, holding that private prosecution does not inherently constitute a failed domestic remedy and can, in certain cases, be an effective pathway, it also made significant progress. By acknowledging the vulnerability of A.E as a minor, the court established that the private proceeding put an excessive burden unto the applicant and was therefore not sufficient to qualify as an effective remedy [para 93].
Private Prosecution as an Effective Remedy in ECtHR's legal reasoning:
The ECtHR has previously addressed private prosecution in Bevacqua and S. v. Bulgaria and Valiuliene v. Lithuania. In these cases, the Court clarified that, while private prosecution may be effective under certain conditions, it depends on the specifics of each case. In Bevacqua, the Court refuted the applicant’s argument on the grounds that their Convention rights could only be protected through public prosecution. The Court held specifically that it is not within its competence to judge private prosecution in the abstract but rather to evaluate its application within the margins of the facts at hand [para 82]. This position was then developed further in Valiuliene, which added that it is for national authorities to decide how to implement Convention rights and whether or not to open public proceedings [para 85]. This indicates that the Court takes active steps to avoid making a substantive decision on this matter but rather judges the performance of the law differently depending on the facts of each case.
Subsequently, the Court’s jurisprudence formed an outline to evaluate the application of national remedies available to domestic violence victims. Multiple aspects need to be considered, such as: (1) the vulnerability of the victim, (2) the nature of the crime, and (3) the presence of state allowances such as margins of appreciation.
As to the vulnerability of the victim, both A.E and Bevacqua emphasize the importance of state involvement when the victim is vulnerable or a minor [para 93]. This idea was preceded in Bevacqua, which established that the vulnerability of the victims as well as the intimate nature of domestic violence requires active State involvement [para 65]. The concept of vulnerability is closely tied to the concept of ‘public interest’, which puts an obligation on prosecutors to publicly prosecute cases that might affect the general interest. Valiuliene combined both concepts and found that ‘if the crime is of public importance or the victim is not able to protect his or her interest’ the prosecutor should open a public case [para 78]. This demonstrates that the level of vulnerability of victims is an important determining factor when opting for public proceedings over private ones.
As to the nature of the crime, domestic violence requires authorities to act delicately and often intervene in familial matters. Specifically, since domestic violence often contains repeated acts of violence, prompt proceedings are an intrinsic part of responding to complaints. Undoubtedly, if privately prosecuting a claim requires extensive time and cannot prevent further violence, then it cannot be considered an effective pathway [Bevacqua para 93]. Although in Bevacqua, the Court also states that the Convention does not require State-assisted prosecution in all cases of domestic violence, their reasoning suggests that it is often the best option [para 82]. Nevertheless, the Court maintains a nuanced approach by refraining from judging private prosecution in abstract.
As to the effects of the margin of appreciation in domestic violence cases, the Court applies the concept widely as it refrains from addressing general legal questions [A.E. para 93-94], and defers to national authorities [Bevacqua para 82]. That being said, in its analysis of A.E the Court reiterated that Convention rights are ‘practical and effective’, rather than ‘theoretical or illusory’ [para 89]. This demonstrates that the Court has a role in ensuring proper compliance and can determine whether national remedies are sufficient.
In conclusion, the ECtHR is steadily reluctant to declare a firm position on private prosecution as a remedy and prefers to let its judgments speak for themselves. While the reasoning in Bevacqua suggested that private prosecution is only effective when accompanied by active state involvement, both Valiuliene and A.E found private prosecution ineffective. The inconsistency in the Court’s jurisprudence stems from its reluctance to dictate how states should act, particularly in matters related to domestic violence. While this hesitancy may reflect a desire to respect state sovereignty, it often leaves victims at risk of inadequate remedies and insufficient protection. A firmer, more coherent stance by the Court could not only enhance the effectiveness of state responses but also serve as a vital step toward advancing women’s rights.
Private prosecution as a (non) effective remedy in the practice of:
The ECtHR’s stance stands in stark contrast to that of the CEDAW, which regards private prosecutions as inherently defective. For example, in O.G v Russia the Committee explained that ‘the fact that a victim of domestic violence has to resort to private prosecution [at all], [...] denies the victim access to justice’ [para 7.7]. In the same case, the Committee even recommended abolishing completely private prosecution in cases of domestic violence, explaining that it puts an undue burden on the victim and creates inequalities and discrimination, therefore constituting a violation of Article 2 of the CEDAW Convention. This distinction between the two approaches may be explained by the nature of each body, the scope of their competence, and their commitments to certain interpretative standards.
Firstly, while the ECtHR is a permanent court that offers binding judgments, its scope is broader compared to the one of CEDAW, which specifically focuses on protecting women from discrimination. While the Committee only issues non-binding recommendations, this allows it to be more progressive in its reasoning. This is evidenced, for instance, through the different diction used by the bodies. The CEDAW uses the concept of ‘effective relief’, which is similar but not synonymous to ‘effective remedy’ as used by the ECtHR. While an effective remedy is process-oriented and focuses on mechanisms to seek redress, effective relief is outcome-based and concerns the substantive adequacy of the outcome.
Secondly, while the ECtHR’s legal tradition typically centers on striking a balance between the rights of the applicant and the margin of appreciation awarded to member states, the CEDAW doesn’t formulate allowances for states, but rather targets national customs beyond existing regulations to mitigate discrimination at the root. For example, in S.T v Russia the Committee put forward that State parties may also be responsible for private acts, if they fail to act with due diligence, and that their responsibility goes beyond lawmaking and must address cultural characteristics that foster inequality [para 9.3].
Towards a stronger, victim-centered standard:
Accordingly, both approaches offer their unique set of advantages and disadvantages. While the CEDAW’s position is more aligned with the needs of domestic violence victims, its non-binding recommendations and broader interpretation lack the authority and legal precision of the ECtHR’s judgments, which are recognized as universal legal standards for human rights. Meanwhile, the ECtHR must operate within the confines of the Convention; although it advances human rights protections, it is not a supranational body and cannot assess domestic laws in the abstract. In fact, this post does not argue that the ECtHR should abandon its reasoning and adopt the ideals of the CEDAW; rather, it should continue as it does now: Drawing on the CEDAW and on other international instruments on women's rights to strengthen its legal reasoning and its intentions.
A possible solution lies in expanding its analysis of the available legal remedies. For instance, in all three ECtHR cases analyzed, the applicants complained under Article 13 of the Convention, which protects the right to an effective remedy (A.E. [63], Bevacqua [54], Valiuliene [44]). The applicants all complained to the ECtHR that the state had failed to provide them with adequate protection. Yet, in all three instances, the Court did not choose to examine the complaints under Article 13. While the Court did not explain its decision, treating private prosecution as a non-effective remedy under Article 13 could potentially create an opening for the Court to explicitly reject private prosecution as an adequate remedy without impinging on national sovereignty.
Conclusion:
In this way, the ECtHR’s recent A.E ruling was a step in the right direction as it established that public prosecution is required in cases of domestic violence inflicted on minors. However, the Court’s stance remains hesitant compared to the CEDAW’s, which openly denounces private prosecution and puts forward the urgent need for reforms to address procedural inequalities in domestic violence proceedings. While the ECtHR is starting to reveal a framework in which both public and private prosecution can be recognised as equally effective remedies, its reasoning tends to focus on striking a balance between human rights and national interests. However, the Court’s approach could benefit from tipping the scale in favor of women’s rights to drive meaningful systemic change.
Author:
Giulia Belgrado is a final-year LLB student at the University of Groningen with a passion for public international law and human rights. As a research assistant to Dr. Maria Fortuna, she focused on researching domestic violence, psychological violence, and private prosecution. Giulia is particularly interested in the European Court of Human Rights, feminist legal studies, and the intersection of law and literature.
