Международные подходы к доказыванию в делах о домашнем насилии

Российский юридический журнал. 2022. № 3. С. 75–86.

Берёза З. М.

Notwithstanding the staggering scale of domestic violence around the globe, it is estimated that not all acts of family abuse are reflected in the statistics. One of the reasons therefor is the complexity of evidential process at all stages of consideration of a criminal case, which leads to situations when the victims are not protected adequately, and the assailants do not receive fair punishment. Considering that the States’ obligation to protect victims of domestic violence is the one of not only national, but also international nature, which implies the necessity to implement relevant international standards into national legal systems, the author assumes that evidentiary issues in those standards are not left without attention. In this connection, the author attempts to analyze special international treaties in the sphere of protection of women from violence, including in the family household, as well as general human rights protection mechanisms, in order to ascertain the requirements for the evidence procedure in domestic violence cases. In this context, Istanbul and Belen-du-Para Conventions and precedential practice of the European and Inter-American Courts of Human Rights were examined. Based on the conducted research, the author concludes that evidentiary issues attract relatively little attention within the framework of international human rights protection mechanisms, and the existing requirements in this sphere are not systematic and differ from one international authority to another. Meanwhile, the need for a simplified approach to the evidentiary process, fair distribution of the burden of proof, which does not imply the imposition of excessive obligations on the injured party, as well as adequate activities of law enforcement in terms of proper collection of evidence are almost generally accepted. A separate aspect is a gender-sensitive approach to the evaluation of evidence, including in cases where it is not the assailant but the victim of domestic abuse who is being subjected to criminal prosecution. 

Keywords: международные договоры, evidence, доказывание, домашнее насилие, domestic violence, international courts, международные суды, international treaties, evidentiary requirements, требования к доказыванию