THIRD SECTION
CASE OF
T.M. AND C.M. v. THE REPUBLIC OF MOLDOVA
(Application no.
26608/11)
JUDGMENT
STRASBOURG
28 January 2014
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 T.M. and C.M. v. the Republic of Moldova,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Ján Šikuta,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges
and Santiago Quesada, Section Registrar,
Having deliberated in private on 7 January 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
26608/11) 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 two Moldovan nationals, Mrs T. M. (“the first
applicant”) and Ms C. M. (“the second applicant”), on 30 April 2011. The
President of the Section acceded to the applicants’ request not to have their
names disclosed (Rule 47 § 3 of the Rules of Court).
The applicants, who had been granted legal aid,
were represented by Mr A. Postica, a lawyer practising in Chișinău. The
Moldovan Government (“the Government”) were represented by their Agent, Mr L.
Apostol.
The applicants alleged, in particular, that the
authorities had failed to offer them effective protection from acts of domestic
violence by not enforcing protection orders issued.
On 6 December 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1982 and 2002
respectively and live in Chișinău. The second applicant is the
daughter of the first applicant.
A. Background to the case
The first applicant and M.M. married in 2001.
M.M. became involved in gambling and started behaving aggressively towards the applicants.
The first applicant filed for divorce, which she obtained on 25 February 2010.
On 22
June 2010 the first applicant complained to the police that she was being verbally
abused by M.M., following which he was fined administratively in the amount of
500 Moldovan lei (MDL − approximately 31 euros at the time).
According to
the applicants, on 5 September 2010 M.M. assaulted the first applicant; he
also caused some bruises to the second applicant. A medical report dated 6 September
2010 established that the first applicant had two haematomas on her lower lip
and a slight defect to her teeth on the left side. Another report produced on
the same day established that the second applicant had two bruises on her right
hand. The medical expert noted the applicants’ explanations that M. M. had punched
the first applicant in the face and had pushed the second applicant to the
ground, which had caused her to have pain in her arm. Each of the medical
reports also stated that the examination had been carried out at the request of
the Buiucani police.
On 24 February 2011
the Chişinău Court of Appeal decided that the applicants had the
right to a three-quarter share of the family apartment, leaving a one-quarter
share to M.M. He allegedly became even more aggressive after that decision was
adopted.
On 21
March 2011 the first applicant complained again to the police that she was being
physically and psychologically abused by her ex-husband. A medical report produced
on the same day established that she had two haematomas on her right leg. M.M. was
fined MDL 500.
B. The applicants’ application for a protection order
On 1 April
2011 the first applicant made another complaint concerning M.M. and applied for
a protection order.
On 5
April 2011 she asked the prosecutor’s office to initiate a criminal
investigation against M.M. On 6 May 2011 a prosecutor rejected her request,
finding that the medical evidence had confirmed that the injuries caused to the
applicants were not considered damaging to their health, meaning that the offence
of domestic violence, which required at least slight bodily harm or damage to
health, had not been committed. The applicants challenged that decision before
the Prosecutor General’s Office on 12 May 2011.
13. On 11 April 2011 the Buiucani
District Court issued a protection order, obliging M.M. to temporarily leave the
family home and to avoid coming within 100m of the applicants or their places
of work and study. However, the order was not sent to the relevant authorities
and the first applicant did not obtain her copy until 22 April 2011. On that
day she brought the protection order to the attention of the local police, the
Ministry of Internal Affairs and the Social Assistance Department.
On 20 April 2011 a psychological report
confirmed that the second applicant was experiencing anxiety and emotional distress.
It recommended that she have no contact with her abusive father.
Despite two visits by the police aimed at
forcing M.M. to leave the family apartment (on 27 and 29 April 2011), M.M. refused
to leave and the applicants had to stay several nights with their relatives. The
last attempt to evict M.M. on 29 April 2011 failed, when he showed the police a
decision of the Buiucani District Court of 29 April 2011 suspending the
enforcement of its own decision of 11 April 2011 pending the examination of an appeal
lodged by him. After that the police refused to take any action in respect of
M.M. until a decision was reached by the courts.
On 22
April 2011 the applicants asked to be referred to a refuge for victims of
domestic violence, the staff of which established that the applicants had been
damaged psychologically as a result of the violence they had suffered at the
hands of M.M.
On an unknown date the applicants appealed against the District Court decision
of 29 April 2011. On 17 May 2011 the Public Order and Police Department of
the Ministry of Internal Affairs (“the Department”) also appealed against the decision,
submitting that the court had been obliged by law to take a decision in respect
of the applicants’ complaint within twenty-four hours, which it had manifestly
failed to do. Moreover, the law provided that objections to a decision to issue
a protection order could not suspend the enforcement of such an order; however,
the court had suspended the enforcement of the order of 11 April 2011.
Furthermore, the order had not been forwarded to the police and social services
immediately, as was required by law. That failure to take a decision and to
enforce the protection order eventually issued had put the applicants at risk
of further ill-treatment.
On 24 May 2011 a criminal investigation was
initiated against M.M., who was accused of stealing jewellery from the first
applicant.
On the same day the Chişinău Court of
Appeal rejected the appeals lodged by the applicants and the Department and allowed
the appeal lodged by M.M., quashing the decision of 11 April 2011 and
implicitly annulling the conditions of the protection order. The court found
that the lower court had (i) failed to follow a special procedure to deal with the
applicants’ application and had not specified the reasons for issuing the
protection order, (ii) had not verified whether the alleged aggressor had been
properly summoned to the court hearing, and (iii) had failed to obtain a report
from social services and the police before issuing the protection order.
Moreover, the lower court had not had the power to suspend the enforcement of
the protection order as it had done. Therefore the decision of 29 April 2011
was also quashed. Since the lower court had failed to comply with the requirements
of the law and had adopted an unlawful decision, the Court of Appeal ordered a
re-examination of the case.
At the applicant’s request, on 4 July 2011 the prosecutor’s office initiated
criminal proceedings against M. M. on charges of domestic violence.
On 15 July 2011 the Buiucani District Court rejected the applicants’ application
for a protection order. It found that the second applicant had explained that
she loved both parents equally; that the father had said horrible things and
tried to make them leave the apartment; and that there had been instances when
her father had hit her mother and also when her mother had scratched her father
or threatened him with a knife. The court noted that the first applicant had
submitted that M.M. had been verbally abusive towards her, but held that there
was insufficient evidence to back up her claims. It concluded that there was no
evidence of any domestic violence having taken place.
On 29 September 2011 the Chişinău Court of Appeal issued a
protection order in favour of the applicants, similar to that of 11 April 2011.
It was officially served on M. M. on 6 October 2011. On 28 December 2011 a
police officer confirmed that the order had been complied with.
On 30 September 2011 the prosecutor discontinued
the criminal investigation against M. M. On 30 December 2011 that decision was
annulled by a higher-ranking prosecutor.
On 27 February 2012 a prosecutor proposed to
discontinue the proceedings concerning the alleged theft of the jewellery. The
parties did not inform the Court of any other developments in the two criminal
cases, except for a statement by the applicants that in October 2012 they were
told that the investigation into their allegations of domestic violence was
ongoing.
II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIALS
The relevant
provisions of the domestic law and the relevant international materials were
summarised in Eremia v. the Republic of Moldova (no. 3564/11, §§ 29-37, 28 May 2013).
In addition, in
its Report “Violence against Women in the Family in the Republic of Moldova”
(2011) the National Statistics Bureau of the Republic of Moldova,
provided statistical data concerning violence against women committed by their
husbands or life partners. It follows from that report, inter alia that,
depending on their age, 41% to 52% of the women interviewed had suffered
physical or sexual violence, while 50% to 66% had suffered psychological
violence (page 120), with a total prevalence of victims of some form of
domestic violence of 63% (page 79). The report also concluded that violence
against women was deeply rooted and widespread in society and was repeated down
the generations. The abuser’s conduct was accepted by society and served as a
means of control over the women. In contrast to violence within the family,
only 6% of the women interviewed declared that they had been subjected to a
form of violence by persons other than their husbands or life partners. Most of
the cases of such reported violence had been caused by other male members of
the victim’s family (fathers, stepfathers). The report also found that in most
cases domestic violence was not a single incident, but took the form of
repeated assault. It was also revealed that a certain percentage of violence
against women went unreported, either because the victim considered that she
could handle it alone or because of fear and shame. The report concluded that
violence against women was rooted in their inequality with men, and that there
was widespread social acceptance of the phenomenon. Less than half of the
victims interviewed were aware of the legislation aimed at protecting them from
domestic violence (Law no. 45, see paragraph 30 in Eremia, cited above).
Of the women who were aware of the legislation, less than half believed it was
efficient. The majority of victims of domestic violence preferred to call the
police rather than doctors or social workers, but they were also the least
satisfied with the manner in which the police acted on their complaints.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants complained that the authorities
had ignored the domestic abuse to which they had been subject, and had failed
to speedily 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 applicants
The applicants argued that the State had failed
to discharge its positive obligations under Article 3 of the Convention to
protect them from domestic violence and to prevent the recurrence of such
violence. The authorities had been informed of M. M.’s actions, but had only fined
him, which had had no effect on his behaviour. The failure to immediately
remove M. M. from the common residence had resulted in the applicants
being put at a constant risk of further ill-treatment.
The authorities’ slow response had also been attributed
to the fact that there had been no methodological instructions about the manner
in which cases of domestic violence should be dealt with. Such instructions had
not been adopted until mid-2012. The State had intervened in such cases only
when serious bodily harm or damage to the victim’s health had been caused, and
the law-enforcement agencies had generally viewed such cases as a private
matter not requiring their intervention, as established in a number of domestic
surveys.
The applicants submitted that their initial application
for a protection order had not been examined for ten days, despite the law
expressly providing a time-limit of twenty-four hours within which the courts
had to take a decision in that regard. Furthermore, the order eventually issued
had not been immediately sent for enforcement by the police and when the first applicant
had eventually obtained a copy she had had to bring it to the attention of the relevant
authorities herself. The police had received a copy of the order on 22 April
2011, but no resolute action had been taken to enforce it until 29 April 2011,
when its enforcement had been suspended by the court because of M. M.’s appeal,
even though that should not have had the effect of suspending its enforcement. The
resulting delay of 180 days between the application for the protection order (1
April 2011) and the issuing of a new, proper order (29 September 2011) could
not be considered reasonable.
(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, M. M. had
been ordered on more than one occasion to pay a fine of MDL 500. The Government
claimed that there had been no real and imminent risk to the applicants’ health
prior to their formal complaint of 11 April 2011, and thus there had been no
positive obligations on them to offer specific protection prior to that date.
After 11 April 2011 the authorities had taken all
necessary measures by issuing a protection order and informing M. M. of his
obligations and responsibility under that order, as well as by initiating a
criminal investigation against him. After the new protection order had been issued
on 29 September 2011, M. M. had left the common residence and the first applicant
had declared not having had any objection to the manner in which the police had
enforced the protection order.
The Government therefore argued that the
complaints under Articles 3 and 8 of the Convention were inadmissible.
2. The Court’s assessment
(a) General principles
35. 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 v. Turkey, no. 33401/02, § 159, ECHR 2009). 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 ensure 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 incidents reported 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).
39. Interference by the
authorities with 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, cited above, §
36; 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 applicants were subjected to treatment
contrary to Article 3 of the Convention
In the present case, the applicants produced
medical evidence showing that they had both been ill-treated (see paragraph 8 above). A further similar incident against the first applicant was confirmed in a
medical report produced on 21 March 2011 (see paragraph 10 above). There was at least one other confirmed incident involving verbal abuse
(see paragraph 7 above).
Moreover, the Court cannot disregard the first
applicant’s fear of further assaults which she must have felt, given M.M.’s
previous history of abuse and the fact of having to share the apartment with
him. Evidence of such fear can be found in the applicants’ seeking of refuge
outside their home (see paragraph 16 above). Similarly the second applicant,
having suffered both a direct assault and verbal abuse, as well as having witnessed
her mother being abused, was subjected to suffering beyond the minimum
threshold of application of Article 3 of the Convention, particularly considering
her tender age (she was eight years-old at the relevant time) and the findings
of a psychological report (see paragraph 13 above).
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 35-39 above), the States’ positive obligations under
Article 3 include, on the one hand, setting up a legislative framework aimed at
preventing ill-treatment and punishing those responsible for such ill-treatment
and, on the other hand, applying the relevant laws in
practice when they are aware of an imminent risk of ill-treatment of an
identified individual or when ill-treatment has already occurred, thereby affording protection to the victims and
punishing those responsible for ill-treatment.
In respect
of the first obligation, the Court notes its previous finding that the
authorities have put in place a legislative framework allowing them to take
measures against persons accused of domestic violence (see Eremia, cited
above, § 57, Mudric v. the Republic of
Moldova, no. 74839/10, § 48, 16
July 2013, and B. v. the Republic of Moldova, no. 61382/09, § 50,
16 July 2013).
The Court must determine whether the domestic
authorities were aware, or ought to have been aware, of both the violence the
applicants had been subjected to and of the risk of further violence, and if so,
whether all reasonable measures had been taken to protect them 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 point out 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, no. 55164/08, § 61, 14 October 2010 and Sandra
Janković, cited above, § 46).
The Court
considers that the authorities were well aware of M. M.’s violent behaviour
(see paragraphs 7-12 above), which became even more evident when the domestic
courts issued the protection order on 11 April 2011 (see paragraph 13 above). Despite the lack of a formal complaint about domestic violence, it is
clear from the medical reports and the fines imposed (see, for instance,
paragraph 8 above), that the police knew of the applicants’ allegation that M.
M. had abused them. In such a situation, it was the duty of the police to
investigate of their own motion the need for action in order to prevent
domestic violence, considering how vulnerable victims of domestic abuse usually
are. However, the authorities were apparently incapable of offering any
kind of protection in the absence of a formal request by the applicants, even
where they had become aware of acts of physical ill-treatment, including
against an eight-year old child (see paragraph 8 above). The fact that relatively
few victims of domestic violence know about Law no. 45 and implicitly about
protection orders (see paragraph 26 above) only compounds the problem.
The prosecutor’s position that no criminal
investigation could be initiated unless the injuries caused to the victim were of
a certain degree of severity (see paragraph 12 above) also raises questions
regarding the efficiency of the protective measures, given the many types of
domestic violence, not all of which result in physical injury, such as
psychological or economic abuse.
After being assaulted for a second time on 21
March 2011 and applying for a protection order, the first applicant had to wait
ten days for the court to deal with her application, despite there being a twenty-four-hour
time-limit established by law for doing so. When the order was eventually
issued, it was not sent immediately to the applicants, nor to the police for
enforcement, which exposed the applicants to a further risk of ill-treatment. Furthermore,
despite all the evidence in the file, both the courts and the prosecutor’s
office refused to offer effective protection until 29 September 2011. It
follows that the applicants were not given effective protection until a year
after the first incident involving physical harm had been reported, and half a
year after the formal application for such protection had been made.
In view of the
manner in which the authorities had handled the case, notably the authorities’
knowledge of the risk of further domestic violence by M. M. and their failure
to take effective measures against him during several months, the Court finds
that the State failed to observe its positive obligations under Article 3 of
the Convention. There has, accordingly, been a violation of that provision.
II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE
CONVENTION ALONE AND TAKEN IN CONJUNCTION WITH ARTICLE 13, AS WELL AS UNDER
ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3
The applicants complained of a violation of
Article 8 of the Convention, which includes protection of a person’s physical
and psychological well-being. By not protecting them from domestic violence,
the authorities had failed to discharge their positive obligations under that
provision. They also submitted that they had not had effective remedies at
their disposal in respect of their complaints under Articles 3 and 8 of the
Convention.
The Government contested those arguments.
The Court considers that, in the light of its
findings of a violation of Article 3 of the Convention, the complaint under
Article 8, as well as Article 13 taken in conjunction with Articles 3 and 8
must be declared admissible, but not raising any separate issue.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 3 AND 8
The applicants further complained that the
authorities’ failure to offer them effective and timely protection had amounted
to gender-based discrimination, based on the authorities’ preconceived ideas
about the role of women in society. They relied on Article 14 of the Convention,
which 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 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
The applicants submitted that they had suffered
discrimination based on their gender, since domestic violence affected mostly
women. The domestic authorities had largely tolerated such violence and in the
present case had not intervened promptly, had allowed delays and had failed to
exercise due diligence in protecting the applicants against domestic violence.
The Government submitted that the present case
was to be distinguished from others such as Opuz (cited above) since in
the present case there had been no general and discriminatory judicial
passivity leading to a climate conducive to domestic violence. On the contrary,
the authorities had reacted promptly by starting a criminal investigation
against the abuser. More generally, the State had taken a number of steps aimed
at improving the system for the protection of victims of domestic violence, as
detailed in paragraphs 29 and 30 in the case of Eremia (cited above).
2. The Court’s assessment
The Court points out its finding that 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 notes that the
first applicant was subjected to violence from her husband on a number of
occasions (see paragraphs 7-10 above) and that the authorities were well aware
of these attacks (see paragraph 46 above).
The Court also notes that a prosecutor refused
to start a criminal investigation because it did not regard the injuries on the
first applicant’s body as severe enough (see paragraph 12 above), which
underlines the failure to realise, or to explain to the law-enforcement
authorities, the specific nature of domestic violence, which does not always
result in physical injury. In addition, the authorities took a long time to
consider the first applicant’s application for a protection order and then
failed to send it for enforcement (see paragraph 13 above). Thereafter, the
police did not take resolute action to remove the abuser from the common residence,
following which a court suspended enforcement of the order, despite the urgency
of the situation (see paragraph 15 above), a decision characterised by the authorities
as contrary to the law (see paragraph 17 above). In the meantime the first applicant was forced to move into a refuge (see paragraph 16 above).
The authorities’ passivity in the present case
is also apparent from their failure to consider protective measures before a
formal application to that end was made, or to initiate a criminal
investigation against M. M. before an official complaint about that was made
(see paragraphs 11 and 20 above). Considering the particular vulnerability of
victims of domestic violence, who often fail to report incidents, it was for
the authorities to verify whether the situation warranted a more robust
reaction of the State and to at least inform the first applicant of the
existing protective measures.
The Court finally questions the attitude of the
domestic court which, having examined the same materials of the case as those
analysed in respect of the Article 3 complaint above and having cited the
second applicant’s statements that her father had verbally abused and hit her
mother, found no evidence of domestic violence.
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 condoning such violence and reflected a discriminatory attitude
towards her as a woman. The findings of the United Nations Special rapporteur
on violence against women, its causes and consequences (see paragraph 37 in Eremia,
cited above), as well as statistical data gathered by the National Bureau of
Statistics (see paragraph 26 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 (see Eremia, cited above, § 90 and Mudric, cited above,
§ 64).
The Court considers that the complaint under
Article 14 taken in conjunction with Article 8 raises essentially the same
issues as those raised under Article 14 taken in conjunction with Article 3 of
the Convention. Therefore, while this complaint is admissible in principle, the
Court will not examine it separately. It also considers that the second
applicant’s complaint, while admissible in principle, does not raise a separate
issue from that examined under Article 3.
IV. 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 20,000 euros (EUR) in
damages for the suffering caused to them by their humiliation and beatings, and
by the authorities’ failure to promptly afford them protection.
The Government argued that the amount claimed
was unjustified, because in their view 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 similar case-law.
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 3,840 for legal
costs. They submitted a time sheet in respect of their lawyer’s work (32 hours
at EUR 120 per hour).
The Government considered excessive 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
application admissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there is no need to examine the
complaint under Article 8 of the Convention alone or in conjunction with
Article 13, as well as under Article 13 taken in conjunction with Article 3 of
the Convention;
4. Holds that
there has been a violation of Article 14 of the Convention taken in conjunction
with Article 3 in respect of the first applicant;
5. Holds that
there is no need to examine the first applicant’s complaint under Article 14 of
the Convention taken in conjunction with Article 8, as well as the second
applicant’s complaints under Article 14 taken in conjunction with Articles 3
and 8;
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 January 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
