In the case of Eremia and Others v. the
Republic of Moldova,
The European Court of Human Rights (Chamber), sitting as a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 7 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
3564/11) against the Republic of Moldova lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by three Moldovan nationals, Mrs Lilia Eremia, Ms Doina
Eremia and Ms Mariana Eremia (“the applicants”) on 16 January 2011.
The applicants, who had been granted legal aid,
were represented by Ms D.I. Străisteanu, a lawyer
practising in Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
The applicants alleged, in particular, that the
authorities had failed to discharge their positive obligations under Articles
3, 14 and 17 of the Convention to protect them from private violence and to
punish their aggressor.
On 21 March 2011 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
Third-party comments were received from the Equal
Rights Trust, which had been given leave by the President to intervene in the
procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the
Rules of Court). The Government replied to those comments
(Rule 44 § 5).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were
born in 1973, 1995 and 1997 respectively and live in Vălcineț.
A. The background of the case
The first applicant was married to A., a police
officer based at the Călăraşi
police station. The second and third applicants are their daughters. According
to the first applicant, following the birth of the second daughter A. would often
come home drunk and assault her, sometimes in the presence of their daughters.
On 2 July 2010 the first applicant petitioned for divorce, having been assaulted
by A. the day before and having witnessed him verbally abuse their teenage daughters.
A. subsequently became more violent, regularly assaulting the first applicant
and insulting both her and their daughters.
On 30 August
2010 the first applicant contacted the local police to report that she had been
punched in the head by A. that day. On 18 September 2010 A. was fined by
an administrative court the sum of 200 Moldovan lei (MDL, then worth approximately
12.40 euros (EUR)). On 30 September 2010 he was given a formal warning by the
authority in charge of the police, the Ministry of Internal Affairs, to stop
his violent behaviour.
On 5
November 2010 A. came home drunk and assaulted the first applicant. On 6
November 2010 she reported the incident to the local prosecutor’s office.
According
to the applicants, on 11 November 2010 A. again assaulted the first applicant
in the presence of their daughters. He did the same on 12 November 2010, this
time almost suffocating the first applicant, following which she lost her voice
for a day and a half. On an unknown date the deputy head of the Călăraşi police station invited the applicant to undergo an
examination by a forensic physician in order to establish the extent and nature
of injuries to her body. The examination took place on 23 November 2010
but no such injuries were found.
B. The protection order and subsequent events
11. On 29 November 2010 the
applicants applied to the Călăraşi
District Court for a protection order. A protection order was made on
9 December 2010, the judge finding that A. had been abusive towards the
first applicant by beating her, insulting her, imposing his will upon her, causing
her stress and psychological suffering, threatening her and mistreating their
pet. Moreover, this violence had often taken place in the presence of their teenage
daughters, whose psychological well-being was being adversely affected as a
result. A. was ordered to stay away from the house for ninety days and an
exclusion zone of 500 m was attached to the order, prohibiting A. from
contacting the applicants or committing any acts of violence against them. The applicants
notified the local police, prosecutor’s office and social services of the order,
which on 12 December 2010 was served on A.
On 9 December 2010 the first applicant requested that Judge B.N. from
the Călăraşi District
Court revoke the six-month waiting period he had insisted the parties observe when
the first applicant petitioned for divorce. She based her application on the
protection order made that day and submitted that A.’s history of violence prevented
any possibility of reconciliation. The first applicant alleged that she was
informed by Judge B.N.’s secretary that the judge had refused to treat her
divorce as an urgent case. On 12 January 2011 the first applicant
complained to the President of the Călăraşi District Court about the judge’s refusal.
On 10
December 2010 Călăraşi
police opened a case against A. to oversee enforcement of the protection order
of 9 December 2010. Between 12 December 2010 and 17 January 2011 the local
police visited A. on six occasions to warn him against alcohol abuse, bringing
shame upon his family, insulting his relatives and breaching the protection
order.
On 14 December 2010 A. was cautioned by local
police for his violent behaviour and was made to confirm in writing that he had
understood the terms of the protection order. It was established that A. had moved
out of the family home and was in temporary local authority housing.
On 16
December 2010 A. saw the first applicant in the street and followed her, using
insulting and threatening language and trying to apprehend her. He continued to
harass her in a shop where she had tried to seek refuge.
On 19 December 2010, A. entered the family home notwithstanding the
terms of the protection order. According to the Government, however, the
applicants had given their permission for him to return until 16 January 2011.
The applicants maintained that they had not given such permission, A. having assaulted
the first applicant, destroyed certain possessions and verbally abused the
third applicant on his return. On 23 December 2010 the first applicant reported
the incidents of 16 and 19 December 2010 to the police. Most of the complaints
to various authorities were then forwarded to the Călăraşi Prosecutor’s Office.
On 10 January 2011 the first applicant was invited to give statements at Călăraşi police station regarding
her complaints against A. She submitted that she was then pressured by the police
into withdrawing her criminal complaint, because if A. had a criminal record
and lost his job, this would have a negative impact on their daughters’
educational and career prospects. A meeting with the local prosecutor was fixed
for the following day, this time with A. being present. During that meeting the
first applicant told the prosecutor that she wanted a divorce but did not want
to cause any trouble for her husband.
On 12 January 2011 the first applicant was informed that the prosecutor would
not be initiating a criminal investigation. On 13 January 2011 A. returned to
the family home. He again assaulted and verbally abused the first applicant,
simulating strangling her, and threatened to kill both her and her aunt if she did
not withdraw her criminal complaint. On 14 January 2011 a medical expert
found four haematomas on the first applicant’s neck and one on her clavicle, which
could have been sustained in the way the first applicant had described.
The Government alleged that on 1 March 2011 A. telephoned the third applicant
to wish her a happy birthday. They further submitted that having obtained
permission from the first applicant, A. returned to the home to congratulate
his daughter in person, spending twenty minutes there in the presence of all
three applicants and his father-in-law.
The first applicant reported the incident to
the Călăraşi District
Court on 2 March 2011, informing it that she had rejected a request by A. to
visit the family home the day before, but that he had turned up nonetheless, in
clear breach of the protection order. She asked the court to extend the duration
of the order for a further ninety days. On 14 March 2011 A. was called before
the court and served with an extension of the order.
On 15 March 2011 the Călăraşi
Social Assistance and Family Protection Department informed the first applicant
that owing to a clerical error the protection order of 9 December 2010 had never
been enforced by the local social services.
On 14 April 2011 the Chișinău
Court of Appeal upheld A.’s appeal, partly revoking the protection order
of 9 December 2010. The appellate court found that the law neither expressly
provided for the minimum exclusion zone of 500 m, nor did it expressly prohibit
the abuser from harassing or using physical violence against the victim,
although these were implied in the general obligation not to make contact. The
appellate court therefore decided to remove these terms from the order.
C. Criminal proceedings against A. and the applicants’
request for administrative sanctions against him
23. On 13 December 2010 the
first applicant requested that a criminal investigation be initiated into A.’s
acts of violence. On the same day the applicants requested that the second and
third applicants be officially recognised as victims of domestic violence for
the purposes of the investigation.
On 17
January 2011 the applicants’ lawyer complained to the Prosecutor General’s Office
that she had not been invited to the meeting on 11 January 2011 at the Călăraşi Prosecutor’s Office (see
paragraph 17 above) at which the first applicant had been pressured into
withdrawing her criminal complaint in A.’s presence. Also on 17 January
2011 a criminal investigation was finally initiated in respect of A. On 25 January
2011 the applicants again requested that the prosecutor’s office officially
recognise the second and third applicants as victims of domestic violence for
the purposes of the investigation.
On 19 January 2011 the first applicant was invited to a meeting with social workers,
who allegedly advised her to attempt reconciliation with A. since she was “neither
the first nor the last woman to be beaten up by her husband”. On 20 January
2011 the applicants complained to the Ministry of Labour, Social Protection and
Family about the social workers’ attitude.
On 17 February 2011 the applicants asked the Călăraşi police to fine A. for breaching the protection order on
16 December 2010, 20 and 22 January and 6 February 2011, her main reason
being that A. had contacted the first applicant and pressured her into withdrawing
her criminal complaint. In response she was informed that on 24 February
2011 the administrative case file against A. had been sent to the Călăraşi District Court.
On 1 April 2011 a prosecutor from the Călăraşi Prosecutor’s Office
established that A. had admitted earlier that day to having physically and
psychologically abused three members of his family. A. then concluded a plea
bargain with the prosecutor asking to be conditionally released from criminal liability.
The prosecutor found that there was substantive evidence of A.’s guilt in the
form of various medical reports, witness statements, documents relating to his fine
and warnings issued by his employer, the Ministry of Internal Affairs. However,
given that he had committed a “less serious offence”, did not abuse drugs or
alcohol, had three minors to support, was well respected at work and in the
community and “did not represent a danger to society”, the prosecutor suspended
the investigation for one year subject to the condition that the investigation
would be reopened should A. commit another offence during that time.
On 13 April 2011 the applicants appealed against the prosecutor’s decision of
1 April 2011. On 18 April 2011 the senior prosecutor rejected that appeal on
the grounds that suspending the investigation against A. would afford better
protection to the applicants.
II. RELEVANT NATIONAL AND INTERNATIONAL MATERIALS
A. Relevant domestic law
29. The relevant
provisions of the Criminal Code read as follows:
Article 59: Conditional release from criminal liability
“A criminal investigation may be conditionally suspended, with
subsequent release from criminal liability, in respect of a person accused of
having committed a less serious offence who admits his or her guilt and does
not represent a danger to society, if the rehabilitation of that person is
possible without criminal punishment.”
Article 2011: Family violence.
“(1) Family violence, that is the intentional action
or inaction manifested physically or verbally, committed by a member of a
family against another member of that family, and which caused physical
suffering leading to light bodily harm or damage to health, or moral suffering,
or to pecuniary or non-pecuniary damage, shall be punished by unpaid work for
the community during 150 to 180 hours, or a prison term of up to two years.
(2) The same action:
(a) committed against two or more members of the
family;
(b) which caused moderate bodily harm or damage to
health
- shall be punished by unpaid work for the community during 180
to 240 hours, or a prison term of up to five years.
(3) The same action which:
(a) caused serious bodily harm or damage to health;
(b) provoked the victim’s suicide or an attempt
thereof;
(c) caused the victim’s death
- shall be punished by a prison term of five to fifteen years.”
Article 320: Non-enforcement of a court
decision.
“(1) The intentional failure or avoidance from
enforcing a court decision, if it was committed after an administrative
sanction, shall be punished by a fine of 200 to 300 conventional units or
by unpaid work for the community during 150 to 200 hours, or with a prison term
of up to two years...”
30. The relevant provisions of Law
no. 45 on the prevention of and combat against domestic violence (1 March 2007,
“the Domestic Violence (Combat and Protection) Act 2007”) read as follows:
Section 15: Protective measures
“(1) The courts shall, within twenty-four hours of
receipt of the claim, issue a protection order to assist the victim, by
applying the following measures to the aggressor:
(a) an order to temporarily leave the common
residence or to stay away from the victim’s residence, without making any
determination as to the ownership of jointly owned assets;
(b) an order to stay away from the victim;
(c) a prohibition on contacting the victim, his or
her children or other dependants;
(d) an order not to visit the victim’s place of work
or residence;
(e) an order to pay maintenance for his or her
children pending resolution of the case;
(f) an order to cover the costs incurred and to compensate
for any damage caused as a result of his or her violent acts, including medical
expenses and the cost of replacing or repairing any destroyed or damaged
possessions;
(g) restrictions on the unilateral disposal of
jointly owned assets;
(h) an order to undergo special treatment or
counselling if the court determines that this is necessary to reduce or
eliminate violence;
(i) an interim contact order for the aggressor to
see his or her children below the age of majority;
(j) a prohibition on possessing and carrying weapons
...
(3) The protective measures set out in subsection
(1) above shall be applied for up to three months and may be discontinued upon
the elimination of the threat or danger which caused the adoption of such
measures and extended if a further claim is submitted or if the conditions set
out in the protection order have not been complied with.”
31. Article 2 of the Law on the Police (no. 416, republished on 31 January
2002) provides that the main tasks of the police include, inter alia,
the protection of the life, the rights and dignity of others, prevention of
crime and protection of public order. Under Article 21 (8) of the same law, a
police officer could be dismissed for committing offences discrediting the
police.
B. Relevant international material
A summary of the relevant international
materials concerning protection from domestic violence, including its
discriminatory nature against women, has been made in the case of Opuz v.
Turkey (no. 33401/02, §§ 72-86, ECHR 2009).
In its Recommendation Rec(2002)5 of 30 April
2002 on the protection of women against violence, the Committee of Ministers of
the Council of Europe stated, inter alia, that member States should introduce,
develop and/or improve where necessary national policies against violence based
on maximum safety and protection of victims, support and assistance, adjustment
of the criminal and civil law, raising of public awareness, training for
professionals confronted with violence against women and prevention.
The Committee of Ministers recommended, in
particular, that member States should penalise serious violence against women
such as sexual violence and rape, abuse of the vulnerability of pregnant,
defenceless, ill, disabled or dependent victims, as well as penalising abuse of
position by the perpetrator. The Recommendation also stated that member States
should ensure that all victims of violence are able to institute proceedings,
make provisions to ensure that criminal proceedings can be initiated by the
public prosecutor, encourage prosecutors to regard violence against women as an
aggravating or decisive factor in deciding whether or not to prosecute in the
public interest, ensure where necessary that measures are taken to protect
victims effectively against threats and possible acts of revenge and take
specific measures to ensure that children’s rights are protected during
proceedings.
With regard to violence within the family, the
Committee of Ministers recommended that Member states should classify all forms
of violence within the family as criminal offences and envisage the possibility
of taking measures in order, inter alia, to enable the judiciary to adopt
interim measures aimed at protecting victims, to ban the perpetrator from
contacting, communicating with or approaching the victim, or residing in or
entering defined areas, to penalise all breaches of the measures imposed on the
perpetrator and to establish a compulsory protocol for operation by the police,
medical and social services.
In its General Recommendation No. 28 on the Core
Obligations of States Parties under Article 2 of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW/C/2010/47/GC.2),
the Committee on the Elimination of Discrimination against Women found that “States
parties have a due diligence obligation to prevent, investigate, prosecute and
punish ... acts of gender based violence”.
In her report concerning the visit to Moldova from 4 to 11 July 2008
(document A/HRC/11/6/Add.4, 8 May 2009), the United Nations Special Rapporteur
on violence against women, its causes and consequences noted, inter alia:
“... patriarchal and discriminatory attitudes are increasing
women’s vulnerability to violence and abuse. In this context, domestic violence
in particular is widespread, largely condoned by society and does not receive
appropriate recognition among officials, society and women themselves, thus
resulting in insufficient protective infrastructure for victims of violence. ...
... 19. Moldovan women suffer from all forms of
violence. However, domestic violence and trafficking are major areas of
concern. The two are intimately connected and are linked to women’s overall
subordinate position in society. ...
20. While reliable data and a systematic registering
of cases on the nature and extent of the phenomenon is lacking, domestic
violence is said to be widespread. According to a Ministry of Labour, Social
Protection and Family report: “[...] At present, the frequency of domestic
violence, whose victims are women and children, is acquiring alarming proportions.
Unfortunately, it is very difficult for the State to control domestic violence
since in most of the cases it is reported only when there are severe
consequences of the violence, the other cases being considered just family
conflicts.
21. Despite this acknowledgement, unless it results
in serious injury, domestic violence is not perceived as a problem warranting
legal intervention. As a result, it is experienced in silence and receives
little recognition among officials, society and women themselves.
22. According to a survey conducted in 2005, 41 per
cent of women interviewed reported encountering some form of violence within
the family at least once during their lifetime. The survey revealed that
psychological violence, followed by physical violence, is the most widely
reported form of abuse in the family. Almost a third of the women interviewed
indicated having been subjected to multiple forms of violence. The study notes
that domestic violence runs across lines of class and education; however, women
with a higher level of education or economic status may tend not to disclose
incidents of violence. Sexual violence remains the least reported form of
violence. This may be due to lack of recognition of sexual abuse within the
family as a wrongdoing or the fear among victims that they will be held
responsible and become outcasts.
23. The perpetrators of violence against women are
often family members, overwhelmingly husbands or former husbands (73.4 per
cent), followed by fathers or stepfathers (13.7 per cent) and mothers or
stepmothers (7 per cent). Staff at the shelter in Chisinau indicated that
husbands of many of the women who seek help at the shelter are either police
officers or from the military, which makes it far more difficult for these
women to escape the violent environment and seek divorce. ...
29. There are also a number of widely held
misconceptions about violence against women which treat the problem as isolated
cases concerning a particular group. These misconceptions are: (a) violence against
women is a phenomenon that takes place in poor and broken homes; (b) victims of
violence are inherently vulnerable women needing special protection; (c)
violent men are deviants who use alcohol and drugs or have personality
disorders; (d) domestic violence involves all members of the household,
including men. It has been my experience that such misunderstandings often
result in misguided and partial solutions, such as rehabilitation programmes
for abusers, restrictions over women in order to protect them or gender neutral
solutions that overlook the causes of gender-based violence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
IN RESPECT OF THE FIRST APPLICANT
The first applicant complained that the authorities
had ignored the domestic abuse to which she and her children had been subject,
and had failed to enforce the binding court order designed to offer them
protection. They relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The first applicant
The first applicant argued that the State had
failed to discharge its positive obligation under Article 3 of the Convention
to protect her from domestic violence and to prevent the recurrence of such
violence. She was a particularly vulnerable person since her aggressor was a
police officer and had the support of his colleagues and other local
authorities, which made her attempts to obtain protection more difficult.
The first applicant submitted that the
authorities “had or ought to have had knowledge”
of A.’s violence against her (citing Z and Others v. the United Kingdom
[GC], no. 29392/95, § 73, ECHR 2001-V), given the number of assaults carried
out by A. and incidents reported. The measures taken in her case had been ineffective
and A. had been able to breach the protection order on a number of occasions.
Moreover, the applicants had asked for a
protection order on 29 November 2010 and the domestic court had only adopted
its decision on 9 December 2010, despite the law obliging it to make such an
order within twenty-four hours of receiving the claim, if well-founded. The
authorities had therefore reacted extremely slowly despite the urgency of the
situation, and consequently the first applicant had not been afforded immediate
protection from the risk of further violence.
The first applicant further contended that the
respondent State had failed to ensure the timely enforcement of the legislation
enacted specifically to protect victims of domestic violence, despite A
repeatedly breaching the protection order. The Government seemed to be suggesting
that the first applicant herself was responsible for the breach of the
protection order that had resulted in her being assaulted on 13 January 2011, despite
the onus resting entirely with the State to ensure that protection orders were complied
with.
Finally, the first applicant argued that
suspending the criminal investigation against A. had resulted in his exemption
from criminal liability, despite his numerous breaches of the protection order
and the repeated assaults on her.
(b) The Government
The Government submitted that the authorities
had taken all reasonable measures to protect the first applicant from the risk
of violence and to prevent such violence from recurring. In particular, the
domestic court had made the original protection order on the initial request
from the first applicant. Prior to the order being made, the authorities had
only been aware of two incidents of violence on the part of A. towards the
first applicant, which had taken place on 30 August and 6 November 2010. There
had therefore been no reason for the authorities to suspect any imminent risk to
the applicants, and a few weeks later (on 9 December 2010) a protection order
had been made.
It was clear that A. was aware of the terms of
the protection order of 12 December 2010 as he had been warned against breaching
it (see paragraph 11 above); he had also been registered as a domestic abuser
and ordered to stay away from the family home for ninety days. Furthermore, he had
been visited by the police on six separate occasions and had had pre-emptive discussions
with them about his behaviour (see paragraph 13 above). The Government submitted
that A. had returned to the family home in December 2010 and stayed until 16
January 2011 because the first applicant had allowed him to do so. While the Government
did not wish to suggest that the first applicant was responsible for the assault
on her that had taken place on 13 January 2011, the fact that she had allowed
him to stay in the house made the recurrence of violence possible and meant
that the authorities were unable to protect her from harm.
The Government argued that all the necessary
measures had been taken in the criminal investigation, which had resulted in charges
being brought against A. (see paragraph 24 above). However, following A.’s admission
of guilt and sincere apologies for his behaviour, the prosecutor had decided to
suspend the investigation on condition that A. committed no further offences
for one year. Such a suspension had not resulted in impunity for A., but rather
it was seen as being the best way of protecting the applicants against the recurrence
of A.’s acts of domestic violence, given the potential punishment he now faced
(see paragraph 28 above). In this connection, the extension of the protection
order on 14 March 2011 (see paragraph 19 above) had not been prompted by any
new incident, but by A.’s visit to the family home to wish his daughter a happy
birthday, which the Government alleged had only taken place with the first
applicant’s permission.
2. The Court’s assessment
(a) General principles
48. The Court reiterates that
ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum is relative: it depends
on all the circumstances of the case, such as the nature and context of the
treatment, its duration, its physical and mental effects and, in some
instances, the sex, age and state of health of the victim (see Costello-Roberts
v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C
and Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI).
. It
further reiterates that Article 1 of the Convention, taken in conjunction with
Article 3, imposes on the States positive obligations to ensure that
individuals within their jurisdiction are protected against all forms of
ill-treatment prohibited under Article 3, including where such treatment is
administered by private individuals (see A. v.
the United Kingdom,
23 September 1998, § 22, Reports of
Judgments and Decisions 1998-VI and Opuz,
cited above, § 159). This obligation should include effective protection of, inter alia, an identified
individual or individuals from the criminal acts of a third party, as well as
reasonable steps to prevent ill-treatment of which the authorities knew or
ought to have known (see, mutatis mutandis, Osman v. the United Kingdom, 28
October 1998, § 116, Reports 1998-VIII; E. and Others
v. the United Kingdom, no. 33218/96,
§ 88, 26 November 2002; and J.L. v. Latvia, no. 23893/06, § 64, 17 April 2012).
It is not the Court’s role to replace the
national authorities and to choose in their stead from among the wide range of
possible measures that could be taken to secure compliance with their positive
obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua
and S. v. Bulgaria, no. 71127/01, § 82, 12 June 2008). At the
same time, under Article 19 of the Convention and in accordance with the
principle that the Convention is intended to guarantee not theoretical or
illusory, but practical and effective rights, the Court has to ensure that a
State’s obligation to protect the rights of those under its jurisdiction is
adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007).
. Furthermore,
Article 3 requires that the authorities conduct an effective official
investigation into the alleged ill-treatment even if such treatment has been
inflicted by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003-XII, and Denis Vasilyev v. Russia,
no. 32704/04, §§ 98-99, 17 December 2009). For the investigation to be
regarded as “effective”, it should in principle be capable of leading to the
establishment of the facts of the case and to the identification and punishment
of those responsible. This is not an obligation of result, but one of means. In
cases under Articles 2 and 3 of the Convention where the effectiveness of the
official investigation has been at issue, the Court has often assessed whether
the authorities reacted promptly to the complaints at the relevant time.
Consideration has been given to the opening of investigations, delays in taking
statements and to the length of time taken for the initial investigation (see Denis Vasilyev, cited
above, § 100 with further references; and Stoica
v. Romania, no. 42722/02, § 67, 4 March 2008).
52. Interference by the
authorities with the private and family life may become necessary in order to
protect the health and rights of a person or to prevent criminal acts in
certain circumstances (see Opuz, cited above, § 144). To that end States
are to maintain and apply in practice an adequate legal framework affording
protection against acts of violence by private individuals (see X and
Y v. the Netherlands, 26 March 1985, § 22 and 23,
Series A no. 91; Costello-Roberts v. the United
Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P.
and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C.
v. Bulgaria, cited above, §§ 150 and 152, ECHR 2003-XII; Bevacqua, cited above, § 65, and Sandra
Janković v. Croatia, no. 38478/05, §
45, 5 March 2009).
(b) Application of these principles in the present
case
(i) Whether the first applicant was subjected to
treatment contrary to Article 3 of the Convention
In the present case, even though the first
applicant was unable to produce medical evidence showing that she had been ill-treated
again, on 9 December 2010 a court decided that the situation was serious
enough to warrant a protection order being made (see paragraph 11 above). Subsequently, the first applicant obtained medical evidence of having been
ill-treated by A. on 13 January 2011 (see paragraph 18 above).
Moreover, the fear of further assaults was
sufficiently serious to cause the first applicant to experience suffering and
anxiety amounting to inhuman treatment within the meaning of Article 3 of the
Convention (see Gäfgen v. Germany [GC], no. 22978/05,
§ 108, ECHR 2010).
In such circumstances, the Court finds that
Article 3 of the Convention was applicable to the present case. It must
therefore determine whether the authorities’ actions in response to the
applicants’ complaints complied with the requirements of that provision.
(ii) Whether the authorities complied with their
positive obligations under Article 3 of the Convention
As recalled earlier (see paragraphs 48-52 above), the States’ positive obligations under
Article 3 include, on the one hand, setting up a legislative framework aimed at
preventing and punishing ill-treatment by private individuals and, on the other
hand, when aware of an imminent risk of ill-treatment of an identified
individual or when ill-treatment has already occurred, to apply the relevant laws in practice, thus affording protection to
the victims and punishing those responsible for ill-treatment.
In respect of the first obligation, the Court
notes that the Moldovan law provided for specific criminal sanctions for
committing acts of violence against members of one’s own family (see paragraph 29 above). Moreover, the law provided for protective measures for the victims of
family violence, as well as for sanctions against those persons who refused to
abide by court decisions (see paragraphs 29and 30 above). The Court concludes that the authorities had put in place a legislative framework allowing them
to take measures against persons accused of family violence.
The Court must determine whether the domestic
authorities were aware, or ought to have been aware, of the violence to which
the first applicant had been subjected and of the risk of further violence, and
if so whether all reasonable measures had been taken to protect her and to
punish the perpetrator. In verifying whether the national authorities have
complied with their positive obligations under Article 3 of the Convention, the
Court must recall that it will not replace the national authorities in choosing
a particular measure designed to protect a victim of domestic violence (see, mutatis
mutandis, A. v. Croatia, cited above, § 61 and Sandra
Janković, cited above, § 46).
The Court considers that the authorities were
well aware of A.’s violent behaviour (see paragraphs 8-10 above), which became even more evident when the domestic courts made the protection order on 9
December 2010 (see paragraphs 11, 15, 16 and 18 above). In particular, despite the clear provisions of the order, on 19 December
2010 A. returned to the applicants’ home (see paragraph 16 above). While the Government submitted that this happened with the first applicant’s
consent, they did not provide any evidence to substantiate their claim. In any
event, it is clear that the first applicant promptly complained to the
authorities about A.’s twofold breach of the protection order by harassing her
on the street and entering her house without her consent (see paragraphs 15 and 16 above). This complaint not only shows that the applicants were unwilling
for A. to return to the family home, but also that the authorities should have realised
that the first applicant was exposed to an increased risk of further violence,
given that A., a police officer, had clearly disregarded a court order.
On 11 January 2011 A. met the local prosecutor to
discuss the criminal complaint made by the applicants (see paragraph 17 above). Even though, as a result of that meeting, A. knew that a decision would be
made as to whether a criminal investigation would be opened against him, he returned
to the family home only two days later, on 13 January 2011 (again in breach
of the protection order), where he assaulted and threatened to kill the first
applicant in the presence of their daughters (see paragraph 18 above). The Court considers that by 13 January 2011 the authorities had sufficient
evidence of A.’s violent behaviour and that the first applicant was at risk of
further domestic violence because of A.’s blatant disregard of the protection
order.
The Court considers that the first applicant was
particularly vulnerable, being unable to defend herself from A., who was a
police officer trained to overcome any resistance. The fact that such violence
occurred in the privacy of their home prevented any outside help. It considers
that the risk to the applicant’s physical and psychological well-being was
imminent and serious enough as to require the authorities to act swiftly.
It appears from the parties’ submissions that the
authorities did not remain totally passive: A. was given a warning by the
Ministry of Internal Affairs, had pre-emptive discussions with the police and
was fined by the administrative courts (see paragraphs 9 and 13 above). However, none of these measures were effective and on
23 December 2010 the applicants informed the authorities of two further breaches
of the protection order by A. (see paragraph 16 above). No action was taken, which allowed A. to return to the family home on 13
January 2011 and assault her, again breaching the protection order. Even after
this incident no particular measures were taken against A. to ensure the
applicants’ safety; he continued to carry out his duties as a police officer throughout
the relevant period.
The absence of decisive action by the
authorities in dealing with A. is even more disturbing considering that the
aggressor was a police officer whose professional requirements included, under
domestic law (see paragraph 31 above), the protection of the rights of others,
the prevention of crime and the protection of public order. The authorities
never considered the impact of such a failure to enforce a court order by a
police officer on the public order and never initiated criminal proceedings
under Article 320 of the Criminal Code (see paragraph 29 above). It is also
arguable that, because A. worked for the State, the authorities had more of an
opportunity to influence his conduct than they would have had in respect of a
private individual, yet they did very little.
The Court lastly observes that the investigation
into A.’s violent behaviour towards the first applicant was suspended with the
possibility for A. to be completely released from criminal liability if he
committed no further offences for one year (see paragraphs 27 and 28 above). Given that A. carried out repeated assaults on the first applicant,
including his blatant disregard of the protection order on 13 January 2011 when
he returned to the family home and assaulted her, and his breach of the order
on several more occasions (see paragraphs 16, 18, 19 and 26 above), it is unclear how the prosecutor could find that A. was “not a danger to society” and to suspend the
investigation against him (see paragraph 27 above). Moreover, the senior prosecutor arrived at the same conclusion on 18 April 2011, even though a court
had extended the protection order only four days earlier on the grounds that A.
still posed a significant risk to the first applicant (see paragraphs 19 and 28 above).
In the Court’s view, the suspension of the
criminal investigation against A. in such circumstances had the effect of
shielding him from criminal liability rather than deterring him from committing
further violence against the first applicant, resulting in his virtual impunity
(see Pădureţ v. Moldova, no. 33134/03, §§ 70-77, 5 January 2010).
In view of the
manner in which the authorities had handled the case, notably the authorities’
knowledge of the danger of further domestic violence by A. and their failure to
take effective measures against him, and to ensure his punishment under the applicable
legal provisions, the Court finds that the State has failed to observe its positive
obligations under Article 3 of the Convention. There has, accordingly, been a
violation of that provision in respect of the first applicant.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION IN RESPECT OF THE SECOND AND THIRD APPLICANTS
The second and third applicants complained of a
violation of their rights under Article 3 of the Convention as a result of being
verbally abused by A. and having witnessed their mother being assaulted.
The Court, which is master of the
characterisation to be given in law to the facts of the case (see Guerra and
Others v. Italy, 19 February 1998, § 44, Reports 1998-I),
decided to examine the complaint raised by the applicants under Article 8 of
the Convention, which 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.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The second and third applicants complained of
verbal abuse on the part of A. and of witnessing their mother being physically
and verbally abused at their home, being unable to help.
The Government submitted that the authorities
had taken all reasonable measures in respect of A., namely pre-emptive discussions
with police, a formal warning by the Ministry of Internal Affairs, a fine by
the administrative court, and the opening of a criminal investigation into his violent
behaviour. Moreover, a protection order had been made by the courts and only
one incident of violence on the part of A. had been reported thereafter. This distinguished
the present case from previous cases where the Court had found a violation of
Article 8 on account of the authorities’ failure to take action, such as Hajduová
v. Slovakia (no. 2660/03, 30 November 2010).
The Court reiterates that while the essential
object of Article 8 of the Convention is to protect the individual against arbitrary
action by public authorities, there may in addition be positive obligations
inherent in effective “respect” for private and family life. These obligations
may involve the adoption of measures in the sphere of the relations of
individuals between themselves. Children and other vulnerable individuals, in
particular, are entitled to effective protection (see X and Y v. the Netherlands, 26 March
1985, §§ 23-24 and 27, Series A no. 91, and August
v. the United Kingdom (dec.), no. 36505/02, 21 January 2003).
As regards respect
for private life, the Court has previously held, in various contexts, that the
concept of private life includes a person’s physical and psychological
integrity, which the States have a duty to protect, even if the danger comes
from the acts of others. To that end they are to maintain and apply in practice
an adequate legal framework affording protection against acts of violence by
private individuals (see X and Y v. the Netherlands, cited above,
§§ 22 and 23; Costello-Roberts v. the United Kingdom, 25
March 1993, § 36, Series A no. 247-C; D.P.
and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October
2002; M.C. v. Bulgaria, no. 39272/98, §§ 150 and 152, ECHR 2003-XII; A v. Croatia, no. 55164/08, § 60, 14 October 2010; and Hajduová,
cited above, § 46). The Court notes in this connection that the
particular vulnerability of victims of domestic violence and the need for
active State involvement in their protection has been emphasised in a number of
international instruments (for references, see Bevacqua, cited
above, §§ 64-65, and Sandra Janković v. Croatia, no. 38478/05, §§ 44-45,
5 March 2009).
1. Whether
there was an interference with the second and third applicants’ rights under
Article 8 of the Convention.
74. In
the present case, the second and third applicants’ psychological well-being has
been adversely affected by repeatedly witnessing their father’s violence
against their mother in the family home, a fact which was also recognised by the
domestic court (see paragraph 11
above). In the Court’s view, this amounts to an interference
with the second and third applicants’ right to private life and respect for
their home within the meaning of Article 8 of the Convention.
75. Since
this interference occurred in the form of A.’s treatment of the first applicant
in such a way as to contravene Article 3 of the Convention (see paragraph 66
above), it could not be considered as having been “in accordance with the law”
or “necessary in a democratic society”. The only question which remains to be
examined is whether the authorities were aware, or ought to have been aware, of
the interference with the second and third applicants’ rights under Article 8
and whether they took all reasonable measures to stop such interference and
prevent it from recurring in accordance with their positive obligations under
Article 8 of the Convention.
2. Compliance with the
positive obligations under Article 8
. The
Court reiterates that its task is not to take the place of the relevant national
authorities in determining the most appropriate methods for protecting
individuals from attacks on their personal integrity, but rather to review
under the Convention the decisions that those authorities have taken in the
exercise of their discretion. The Court will therefore examine whether the
Republic of Moldova, in handling the second and third applicants’ case, has
been in breach of its positive obligation under Article 8 of the Convention
(see, mutatis mutandis, Handyside v. the United Kingdom, 7 December
1976, § 49, Series A no. 24).
77. In its decision of 9 December 2010 (see
paragraph 11 above) a domestic court established
that the second and third applicants’ psychological well-being was being
adversely affected by witnessing A.’s violence towards their mother. Accordingly,
the protection order issued on that day prevented A. from contacting, insulting
or ill-treating not only the first applicant, but also her children. Moreover, on
13 December 2010 the applicants asked the prosecutor’s office for the second and third applicants to be officially
recognised as victims of domestic violence for the purposes of the criminal investigation
in respect of A. Furthermore, on 23 December 2010 the applicants
complained to the Călarași Prosecutor’s Office that A. had not only
assaulted the first applicant but had also verbally abused the second and third
applicants on 19 December 2010 (see paragraph 16 above).
78. It is clear to the Court that by late December
2010 the authorities were fully aware of A.’s breaches of the protection order
and of his threatening and insulting behaviour not only towards the first
applicant, but also of the effects of such behaviour on the second and third
applicants. However, as already found in respect of the complaint under Article
3 above, little or no action was taken to prevent the recurrence of such behaviour
by A. Moreover, despite a further serious assault on 13 January 2011, no decisive
action was taken against A., who was eventually released from all criminal
liability.
79. In such circumstances, the Court
concludes that the domestic authorities did not properly comply with their
positive obligations under Article 8 of the Convention. There has, accordingly,
been a violation of that provision in respect of the second and third
applicants.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 3 AND 8 OF THE CONVENTION
The applicants also complained under Article 14
of the Convention in conjunction with Articles 3 and 8, that the authorities
had failed to apply the domestic legislation intended to afford protection from
domestic violence, as a result of preconceived ideas concerning the role of
women in the family. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
A. Admissibility
The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
The applicants claimed that the authorities had
failed to take appropriate action aimed at preventing domestic violence,
protecting from its effects, investigating the complaints and punishing the
perpetrator. They thus promoted further violence from A., who felt immune to
any State action. The violence was gender-based and amounted to discrimination
contrary to Article 14 of the Convention.
The Government argued that there had been no
discriminatory treatment in the present case. Unlike in the case of Opuz,
cited above, the authorities had not been inert to the first applicant’s
complaints and had taken all reasonable action to prevent her ill-treatment,
having started criminal proceedings against A. and having released him from
criminal responsibility under the condition that he would incur such
responsibility if he committed any further offence. This resulted in increased
protection for the first applicant. Even if some shortcomings in the practical
implementation of the law against domestic violence could still be found, this
was due to the relative novelty of that law, dating from 2007.
The Equal Rights Trust submitted that there was
well-established evidence that domestic violence impacted disproportionately
and differently upon women. If it was to be effectively tackled, such violence
demanded a particular response, which included treating such violence as a form
of gender-based discrimination. Failing to realise this amounted to a failure
to acknowledge the magnitude of the problem and its impact upon the dignity of
women. They referred to the General Recommendation No. 28 on the Core
Obligations of States Parties under Article 2 of the Convention on the
Elimination of All Forms of Discrimination against Women adopted by the Committee
on the Elimination of Discrimination against Women (CEDAW/C/2010/47/GC.2), in
accordance with which “States parties have a due diligence obligation to
prevent, investigate, prosecute and punish ... acts of gender based violence”.
The Court recalls that it has already found the
State’s failure to protect women against domestic violence breaches their right
to equal protection of the law and that this failure does not need to be
intentional (see Opuz, cited above, § 191).
In the present case, the Court refers to its
findings (see paragraph 66 above) that the first applicant was subjected to
violence from her husband on a number of occasions and that the authorities
were well aware of that. It observes that, having suffered repeated acts of
violence, the first applicant asked for an urgent examination of her request
for a divorce. However, the judge apparently refused to speed up its
examination and the President of the Călărași District
Court did not take any action in reply to a formal complaint made in that
respect (see paragraph 12 above).
The Court further notes that on 10 January 2011
the first applicant was called to the local police station and was allegedly
pressured to withdraw her complaint against A. (see paragraph 17 above). Moreover, her lawyer’s complaint about that was apparently left without
any answer (see paragraph 12 above). It is also clear that the Călărași
Social Assistance and family Protection Department had failed to enforce
the protection order in the applicant’s name until 15 March 2011 (see paragraph
21 above) and allegedly further insulted the applicant by suggesting
reconciliation since she was anyway “not the first nor the last woman to be
beaten up by her husband” (see paragraph 25 above).
Finally, having confessed to beating up his wife, A.
was essentially shielded from all responsibility following the prosecutor’s
decision to conditionally suspend the proceedings (see paragraph 27 above).
In the Court’s opinion, the combination of the
above factors clearly demonstrates that the authorities’ actions were not a
simple failure or delay in dealing with violence against the first applicant,
but amounted to repeatedly condoning such violence and reflected a
discriminatory attitude towards the first applicant as a woman. The findings of
the United Nations Special rapporteur on violence against women, its causes and
consequences (see paragraph 37 above) only support the impression that the
authorities do not fully appreciate the seriousness and extent of the problem
of domestic violence in Moldova and its discriminatory effect on women.
Accordingly, in the particular circumstances of
the present case, the Court finds that there has been a violation of Article 14
in conjunction with Article 3 of the Convention in respect of the first
applicant.
The Court considers that the complaint under
Article 14 taken in conjunction with Article 8 does not raise any separate issues.
It will, therefore, not examine this complaint separately.
IV. ALLEGED VIOLATION OF ARTICLE 17 OF THE
CONVENTION
The applicants also complained under Article 17
of the Convention that the authorities’ failure to curb A.’s violent behaviour had
allowed him to continue to infringe their rights with impunity, effectively
destroying their Convention rights. Article 17 reads as follows:
“Nothing in [the] Convention may be interpreted as implying for
any state, group or person any right to engage in any activity or perform any
act aimed at the destruction of any of the rights and freedoms set forth herein
or at their limitation to a greater extent than is provided for in the
Convention.”
Having examined the materials in the case file,
the Court considers that this complaint is unsubstantiated. It follows that
this part of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
V. 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 first applicant claimed 20,000 euros (EUR)
in damages for the suffering caused to her by her systematic humiliation and
beatings, and by the authorities’ failure to promptly afford her protection by
enforcing the protection orders. She referred to her experiences of being assaulted,
threatened and verbally abused by A., and humiliated by her work colleagues and
various authorities for wanting to divorce A. and for “being a bad wife
deserving to be beaten”.
The second and third applicants claimed EUR
5,000 each, on the basis that they had witnessed the violence against their
mother, had been ill-treated themselves and had been humiliated at school and
by social workers.
The Government argued that the amount claimed
was unjustified, notably because the authorities had taken all reasonable
measures to prevent violence against the applicants. They also submitted that the
amount was excessive when compared with the Court’s previous case-law relating
to Articles 3 and 8. They invited the Court to reject the applicants’ claims.
Having regard to the seriousness of the violations
found above, the Court considers that an award for non-pecuniary damage is
justified in this case. Making its assessment on an equitable basis the Court
awards the applicants jointly EUR 15,000.
B. Costs and expenses
The applicants claimed EUR 8,737.50 and 29,463.25
Moldovan lei (MDL, approximately EUR 1,876) for legal costs. They submitted a
time sheet in respect of their lawyer’s work (87.95 hours at MDL 335 per hour
for work done at domestic level and 58.25 hours at EUR 150 per hour for work before
the Court).
The Government considered excessive both the
number of hours worked on the case and the rates charged by the lawyer. They
noted that in Boicenco v. Moldova (no. 41088/05, § 176, 11 July 2006)
the Court had accepted as reasonable a rate of EUR 75 per hour, in view of the
complexity of the case and the extensive input by the lawyers. The present case
was not so complex in nature.
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 are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession, the above criteria and to the fact that the
applicants have been given legal aid by the Council of Europe, the Court
considers it reasonable to award the sum of EUR 2,150 covering costs under all
heads.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaints under Articles 3,
8 and 14 of the Convention admissible, and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention in respect of the first applicant;
3. Holds that there has been a violation of
Article 8 of the Convention in respect of the second and third applicants;
4. Holds that there has been a violation of Article
14 read in conjunction with Article 3 of the Convention
in respect of the first applicant;
5. Holds that there is no need to examine separately the
complaint under Article 14 read in conjunction with
Article 8 of the Convention;
6. Holds
(a) that the respondent State is to pay the
applicants jointly, within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at
the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,150 (two thousand one hundred and fifty 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;
7. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 28 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
