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FOURTH
SECTION
CASE OF E. S. AND OTHERS v. SLOVAKIA
(Application
no. 8227/04)
JUDGMENT
STRASBOURG
15 September 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of E. S. and Others v.
Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having deliberated in private on 25
August 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8227/04) against the Slovak
Republic lodged with the Court on 9 February 2004 under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by four Slovak nationals, Mrs
E. S., Ms Er. S., Ms Ja. S. and Mr Já. S. (“the
applicants”). The President of the Chamber acceded to the
applicants' request not to have their names disclosed (Rule 47 §
3 of the Rules of Court).
- The
applicants were represented by Mrs I. Rajtáková, a
lawyer practising in Košice. The
Slovak Government (“the Government”) were represented by
their Co-agent, Mrs M. Bálintová.
- On
11 February 2008 the President of the Fourth Section decided to
communicate the complaint concerning Articles 3 and 8 of the
Convention to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
facts of the case, as submitted by the applicants, may be summarised
as follows.
- The
applicants are four Slovak nationals who live in Košice.
The first applicant, Mrs E. S., was born in 1964.
She is the mother of the second applicant,
Ms Er. S., the third applicant, Ms Ja. S., and the fourth applicant,
Mr Já. S., who were born in 1986, 1989 and 1988
respectively.
- On
7 March 2001 the applicants left the apartment in which they lived
with Mr S., who was the first applicant's husband and the father of
the second, third and fourth applicants. The first applicant moved
the second, third and fourth applicants away from the apartment to
protect them from physical and sexual abuse by Mr S.
- On
11 April 2001 the first applicant filed for divorce against her
husband in the Košice I District
Court. On 25 June 2001 the District Court placed the second,
third and fourth applicants in her care pending the outcome of the
divorce proceedings. On 19 March 2002 the District Court granted the
petition for divorce. The divorce was finalised on 6 May 2002. The
first applicant was granted custody of the second, third and fourth
applicants on 18 November 2003.
- On
21 May 2001 the first applicant filed a criminal complaint against
her husband on the ground that he had ill-treated both her and the
children and had sexually abused one of their daughters.
- On
the same day the first applicant requested that the Košice
I District Court issue an interim measure ordering her
husband to move out of the municipal apartment that they held under a
joint tenancy. In making the request, the first applicant referred to
her husband's behaviour in respect of the children and submitted the
opinion of an expert, which indicated that the second, third and
fourth applicants had suffered from physical and psychological
ill-treatment on account of their father's behaviour and expressed
the view that it was absolutely necessary to separate the four
applicants from him.
- Articles
74 and 76 of the Code of Civil Procedure permitted the courts to
issue an interim measure requiring the parties to perform something,
forbear from something or bear something. On 20 June 2001 the
District Court dismissed the first applicant's request as her husband
had a tenancy right in respect of the apartment and the court
considered that it lacked the power to restrict his right to use it.
As a consequence, the applicants had to move away from their home,
their family and their friends and the second and third applicants
had to move to a new school.
- The
first applicant appealed to the Regional Court in Košice.
She informed the court that the children had been placed in her
custody and that criminal proceedings had been brought against their
father.
- On
31 August 2001 the Regional Court in Košice
upheld the first-instance decision not to issue an interim
measure. It held, with reference to the relevant law and practice,
that the first applicant would be entitled to bring proceedings with
a view to terminating the joint tenancy of the apartment only after a
final decision had been delivered in the divorce proceedings.
Ordering an interim measure in the terms requested by the first
applicant would impose a disproportionate burden on her husband. The
Regional Court indicated, however, that an interim measure could have
been issued if the first applicant had instead requested that her
husband be ordered to abstain from inappropriate behaviour towards
her and the children and to abstain from threatening them.
- The
applicants complained to the Constitutional Court. On 18 June 2003,
shortly before the Constitutional Court issued its judgment, the
first applicant's former husband was convicted by the Regional Court
in Košice of ill-treatment, violence
and sexual abuse. He was sentenced to four years' imprisonment. An
expert opinion submitted in the context of the criminal proceedings
indicated that contact with their father had an adverse effect on the
second, third and fourth applicants' health and development.
- In
a judgment dated 9 July 2003, the Constitutional Court found that the
Košice I District Court and the
Regional Court in Košice, by failing
to take appropriate action with a view to protecting the
second, third and fourth applicants from ill-treatment by their
father, had violated their rights under Articles 16 § 2
(prohibition of torture, inhuman or degrading treatment or
punishment) and 21 §§ 2 and 3 (inviolability of home) of
the Constitution as well as their rights under Article 19 of the
Convention on the Rights of the Child, which obliges the Contracting
Parties to take appropriate measures to protect children from all
forms of physical or mental violence, including sexual abuse.
- The
documentary evidence in the case was sufficient to conclude that the
applicants had been subjected to physical violence and abuse by the
husband of the first applicant. The decision stated that the second,
third and fourth applicants had not been parties to the proceedings
concerning the interim measure. In view of the facts of the case, the
ordinary courts should, nevertheless, have issued an interim measure
of their own initiative with a view to protecting the children from
abuse and ill-treatment by their father. Such an obligation resulted
from the relevant provision of the Code of Civil Procedure as well as
from the Convention on the Rights of the Child.
- The
Constitutional Court held that the finding of a violation provided in
itself appropriate just satisfaction to the three applicants
concerned. It therefore dismissed their request for compensation for
non-pecuniary damage.
- As
regards the first applicant, the Regional Court's decision stated
that an interim measure could have been granted had she phrased her
request in a different manner. In reaching that conclusion the
Regional Court had not, in the Constitutional Court's view, acted
contrary to the first applicant's constitutional rights.
-
In January 2003 the relevant legislation had been amended
specifically to provide that the domestic courts could order a party
“not to enter temporarily a house or an apartment occupied by a
close person or person in his/her care or education in relation to
whom there are reasons for he/she being suspected of violence.” One
week before the Constitutional Court issued its judgment, the first
applicant lodged with the Košice I District Court
a motion for an interim measure ordering, inter alia, her
former husband not to enter the common apartment. On 7 July 2003
Košice I District Court issued an interim order in those
terms, starting with the date of the delivery of the decision and
expiring fifteen days after the order became enforceable. Moreover,
the court ordered the first applicant to file an action for exclusion
from the apartment within thirty days from the date of delivery of
the decision. The decision became enforceable on 29 October 2003.
- On
10 July 2003 the first applicant filed an action with the Košice
I District Court to exclude her former husband from using the
apartment. On 18 May 2004 she filed with the Košice I District
Court an action for cancellation of the right to joint lease of the
apartment. On 10 December 2004 the Košice I District
Court cancelled the right to a joint lease of the apartment and the
first applicant became the exclusive tenant thereof. Furthermore, the
court ordered the applicant's former husband to move from the
apartment within fifteen days from the date of final judgment.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure (applicable up to and
including 31 December 2001)
- Article
74 (1) of the Code of Civil Procedure, provides as follows:
“Before commencing the action the court may issue
an interim measure if it is necessary to arrange the situation of the
parties, or if there is a concern that the exercise of judgment would
be threatened.
The competent authority to issue an interim measure is
the court which is competent to deal with the case. The parties to
the proceedings are those who would be the parties if it concerned
the merits.”
- Article
76 provides that through an interim measure the court may impose upon
the party, within the time assigned by the court, to perform
something, to forbear from something, or to bear something.
B. Code of Civil Procedure (as applicable from 1
January 2003 to 31 August 2003)
- The
amended Article 74 provided:
“Before commencing the action the court may issue
an interim measure if it is necessary to arrange the situation of the
parties, or if there is a concern that the exercise of judgment would
be threatened.
The competent authority to issue an interim measure is
the court which is competent to deal with the case. The parties to
the proceedings are those who would be the parties if it concerned
the merits.”
- The
amended Article 76 specifically provides that the court may order a
party “not to enter temporarily a house or an apartment
occupied by a close person or person in his/her care or education in
relation to whom there are reasons for he/she being suspected of
violence.”
C. Civil Code (as applicable from 1 January 2003)
- Article
705a (8) of the Civil Code provides:
“If a further cohabitation is unsupportable due to
the physical or mental violence or threats of such violence from a
husband or former husband, who is the joint user of an apartment, or
from a close person jointly using an apartment, based on a motion of
one of a married couple or former married couple the court can limit
a right of use of the other of a married couple or exclude him/her
totally from the right of use of an apartment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
- The
applicants complained under Articles 3 and 8 of the Convention that
the authorities had failed to protect them in an appropriate manner
from treatment to which they had been subjected by their
husband/father. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- Article
8 of the Convention reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government admitted that the domestic authorities failed to take
appropriate measures to protect the second, third and fourth
applicants from ill-treatment in violation of Article 3 of the
Convention. The Government further admitted that the authorities
failed to meet the positive obligation to respect the family and
private lives of the second, third and fourth applicants.
Nevertheless, the Government contended that the second, third and
fourth applicants were no longer victims because they were provided
with satisfactory redress at the national level.
- With
regard to the first applicant, the Government submitted that her
application was inadmissible as she failed to exhaust domestic
remedies.
A. Admissibility
- The
Government submitted that the first applicant failed to exhaust
domestic remedies. The Regional Court advised her that she had not
formulated the claim correctly and that she should have requested the
issuance of an interim measure formulated with regard to the specific
behaviour of her former husband. In this regard she was in a
different position from the second, third and fourth applicants, who,
as minors, were warranted special protection by the courts. Unlike
the other applicants, the first applicant could not succeed before
the civil courts without a legally relevant motion. As she at no time
brought such a motion her subsequent complaint to the Constitutional
Court was unsuccessful.
- The
Government further submitted that adequate redress had been afforded
to the second, third and fourth applicants through the Constitutional
Court's decision of 9 July 2003, in which it held in substance that
the failure of the lower courts to meet the positive obligation to
protect vulnerable minors had violated their rights under Articles 3
and 8 of the Convention. They submitted that redress did not consist
exclusively in the provision of financial satisfaction. Rather, they
argued that in the event of a violation of Article 2 or 3 of the
Convention, compensation of non-pecuniary damage is only one of the
possible remedies (Keenan v. the United Kingdom, no. 27229/95,
§ 130, ECHR 2001 III). In the present case, the
Constitutional Court considered the specific circumstances of the
case and concluded that the finding of a violation amounted to
sufficient satisfaction. In particular, the court noted that the
first applicant had contributed to any injury incurred by failing to
file a motion in the terms directed by the Regional
Court. Moreover, the Government submitted that by the date of
the Constitutional Court decision, the applicants' husband/father had
been sentenced to four years' imprisonment and Article 76 of the Code
of Civil Procedure had been amended to specify that the courts had
jurisdiction to order that a person suspected of violence could not
enter a particular house or apartment.
- The
first applicant submitted that the remedy identified by the
Government, namely an order that her former husband abstain from
inappropriate behaviour towards her and the second, third and fourth
applicants, did not amount to an effective remedy because it would
not have afforded sufficient protection to her or her children. As
the threat of a significant prison sentence failed previously to
deter her former husband from “inappropriate behaviour”,
it was not reasonable to conclude that the interim measure would have
afforded her sufficient protection.
- The
second, third and fourth applicants submitted that they had not lost
their victim status as the national authorities had not afforded them
adequate redress for the breach of their Convention rights. In
particular, they submitted that in similar cases the Constitutional
Court had frequently, and almost without exception, granted
applicants appropriate financial satisfaction.
-
The Court recalls that it is incumbent on a Government claiming
non-exhaustion to satisfy the Court that there was an effective
remedy available in theory and in practice at the relevant time which
was accessible, capable of providing redress in respect of the
applicant's complaints and offering reasonable prospects of success
(see Akdivar and Others v. Turkey, 16 September 1996, §
68, Reports of Judgments and Decisions 1996-IV). In view of
the comments made by the Regional Court, it would appear that the
first applicant would have had a reasonable prospect of success had
she applied for an interim measure ordering her former husband to
refrain from any inappropriate behaviour. The Court is not persuaded,
however, that such an interim measure would have provided adequate
redress in respect of the first applicant's claims. She was concerned
that her former husband, who at the time stood accused of physically
assaulting both her and her children and of sexually abusing one of
her daughters, still had a legal right to enter and reside in the
rented property which she shared with the children. She therefore
requested an interim order excluding him from the property. An order
requiring him to refrain from inappropriate behaviour towards her or
the children would have afforded substantially weaker protection than
that originally sought. In fact, all that the order would have
required of the first applicant's former husband was that he
refrained from doing acts already prohibited by the criminal law,
which previously had failed to provide an adequate deterrent. The
Court therefore finds that an application for such an interim measure
did not constitute an effective domestic remedy for the purposes of
Article 35 § 1 of the Convention. The first applicant has
therefore exhausted all effective domestic remedies.
- With regard to the second, third and fourth
applicants, the Court recalls that the nature of the right at stake
has implications for the type of remedy the State is required to
provide. Where violations of the rights enshrined in Articles 2 and 3
are alleged, compensation for pecuniary and non-pecuniary damage
should in principle be part of the range of redress available (see
Öneryıldız v. Turkey [GC], no. 48939/99, §
147, ECHR 2004 XII; Paul and Audrey Edwards v. the United
Kingdom, no. 46477/99, § 97, ECHR 2002 II; Z and
Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR
2001 V; and T.P. and K.M. v. the United Kingdom [GC], no.
28945/95, § 107, ECHR 2001-V).
- In
the present case the State provided a remedy through which
compensation for non-pecuniary damage was, at least in principle,
part of the redress available. Nevertheless, having found a violation
of the second, third and fourth applicants' rights under Articles 16
§ 2 (prohibition of torture, inhuman or degrading treatment or
punishment) and 21 §§ 2 and 3 (inviolability of home) of
the Constitution as well as their rights under Article 19 of the
Convention on the Rights of the Child, which obliges the Contracting
Parties to take appropriate measures to protect children from all
forms of physical or mental violence, including sexual abuse, the
Constitutional Court declined to award financial compensation,
finding instead that the identification of a violation alone amounted
to adequate redress.
- The
Court is not persuaded by the reasons proffered by the Government for
the decision not to award financial compensation to the second, third
and fourth applicants. In view of the Constitutional Court's finding
that the lower courts could have – and should have –
granted the original application made by the first applicant, and
this Court's finding that an application for an interim measure in
the terms suggested by the Regional Court did not constitute an
effective remedy, the Court finds little force in the Government's
submission that any subsequent injury sustained by the applicants was
at least in part the first applicant's responsibility for failing to
make a second application. Moreover, the conviction of the second,
third and fourth applicants' father more than two years after the
first application was filed on 21 May 2003 and the subsequent
amendment to the Code of Criminal Procedure in January 2003 did not
amount to adequate redress for three minors who were forced to leave
the family home because the State failed to offer them protection
from an abusive parent for up to two years.
- The
Court therefore finds that as a result of the Constitutional Court's
failure to award financial compensation to the second, third and
fourth applicant, they have not obtained adequate redress for the
violation of their rights under Articles 3 and 8 of the Convention.
- The
Court further notes that the application is not inadmissible on any
other grounds. The application must therefore be declared admissible.
B. Merits
- The
Government have admitted that the domestic authorities failed to take
appropriate measures to protect the second, third and fourth
applicants from ill-treatment in violation of Article 3 of the
Convention. The Government have further admitted that the authorities
failed to meet the positive obligation to respect the family and
private lives of the second, third and fourth applicants.
- The
Court therefore finds that the respondent State failed to discharge
the positive obligation to protect the rights of the second, third
and fourth applicants under Articles 3 and 8 of the Convention.
- The
first applicant denied that her rights under Articles 3 and 8 were
adequately protected by the State
- The
Government, on the other hand, submitted that she had failed to
obtain protection from her former husband because she wrongly
formulated the claim of her motion. By contrast, all of her
subsequent applications for protection were successful. On 7 July
2003, following an amendment to the law, an interim measure was
granted forbidding her former husband from entering the apartment and
subsequently, on 10 December 2004, the right to the joint lease on
the apartment was cancelled. In any case, on 18 June 2003 the first
applicant's former husband was convicted of cruelty towards her and
the children and was sentenced to over four years in prison.
Consequently, the Government submit that the first applicant was
provided with effective protection against ill-treatment at the hands
of her former husband and against any interference with her right to
respect for her private and home life.
- The
Court has already found that the alternate measure proposed by the
Regional Court would not have afforded the applicant adequate
protection against her former husband. The subsequent orders relied
on by the Government were only granted in July 2003 and December
2004. The applicant could not have brought the application for an
interim measure forbidding her former husband from entering the
apartment until after the relevant law was amended in January 2003.
It is not clear why the order severing the tenancy was not granted
until December 2004 when the divorce was finalised in May 2002, or
indeed whether the fault for this delay lies with the first applicant
or the domestic court. In any case the first applicant was not in a
position to apply to sever the tenancy until her divorce was
finalised in May 2002, approximately a year after the allegations
were first brought against her former husband. Given the nature and
severity of the allegations, the first applicant and her children
required protection immediately, and not a year or two years after
the allegations first came to light. The Court finds that during this
period no effective remedy was open to the first applicant by which
she could secure protection for herself and her children against the
acts of her former husband.
- In
relation to the second, third and fourth applicants, the Government
admitted that if they were victims for the purposes of Article 35 §
1, there had been a failure to protect them which resulted in a
violation of their rights under Articles 3 and 8 of the Convention.
In relation to the first applicant, the Government argued that the
State had offered her adequate protection against her former husband.
The Government have not, however, suggested that the first applicant
was not subjected to treatment which reached the threshold of
Articles 3 and 8. Therefore, in view of the Court's finding that the
State did not offer her adequate protection against her former
husband, the Court finds the respondent State failed to discharge the
positive obligation to protect the rights of the first applicant
under Articles 3 and 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
- The
applicants alleged that the facts of the case also gave rise to a
violation of Article 5 § 1 of the Convention.
- The Court has examined this complaint but finds, in
the light of all the material in its possession and in so far as the
matters complained of are within its competence, that it does not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed the following sums in respect of non-pecuniary
damage:
The
first applicant: EUR 16, 596.96;
The
second applicant: EUR 33,193.92;
The
third applicant: EUR 23,235.74;
The
fourth applicant: EUR 23,235.74.
- The
Government submitted that the claims were overstated and did not
reflect the true subject value of the claims.
- While
the Court has found a violation of Article 3 of the Convention in
respect of each of the four applicants, the violation was breach of a
positive obligation to take adequate steps to protect the applicants.
As a consequence, the applicants had to leave their home and relocate
elsewhere. There is no indication that they subsequently were
subjected to further ill-treatment or abuse.
- Against
this background, the Court finds that the circumstances justify the
making of an award substantially lower than that claimed by the
applicants. Moreover, it sees no basis for distinguishing between the
applicants in respect of the quantum of the award. They are a family
unit and the violation affected them collectively and equally.
-
The Court therefore awards the applicants jointly EUR 8,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 650.60 for the costs and expenses
incurred before the Constitutional Court and EUR 1,437.83 for those
incurred before the Court.
- The
Government submitted that the applicants have not provided evidence
to prove that they actually paid the sums claimed to their advocate.
Moreover, the Government submitted that the amount charged by the
advocate and claimed by the applicants was overstated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. Provided that the costs have in fact been
incurred, it is not necessary for the applicant to demonstrate that
they have been paid to the advocate. In the present case, the
advocate has submitted a bill and the Court is satisfied that the
costs set out therein were incurred in the course of proceedings
before this Court and the Constitutional Court. The Court therefore
considers it reasonable to award the applicants jointly the sum of
EUR 2,000 covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 3 and 8
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 8,000, plus any tax that may be chargeable, in respect of
non-pecuniary damage and EUR 2,000 (two thousand euros), plus any tax
that may be chargeable to the applicants, in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
5. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in English, and notified in writing on 15 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
