In the case of Busuioc v. the Republic of Moldova,
The European Court of Human Rights (Third Section), 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 25 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
61382/09) 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, Ms Olga Busuioc, Mr Victor
Busuioc and Mr Ion Busuioc (“the applicants”), on 19 November 2009.
The applicants were represented by Mr A. Bivol, a
lawyer practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
The applicants alleged, in particular, that Mrs
Olga Busuioc (‘the first applicant’) had been subjected to violence from her
ex-husband and that the other applicants had witnessed such violence and been
affected by it, while the State authorities had done little to stop such
violence and prevent it from happening again.
On 25 January 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants
were born in 1959, 1987 and 1990 respectively and live in Chişinău.
The first applicant is the mother of the other two applicants.
A. The background of the
case
In 1998 the applicants’ family obtained from the
first applicant’s employer a three-room apartment in Chişinău for
their use.
According to the first applicant, she was
systematically beaten and insulted by her husband (V.B.). As a result, on 16
January 2007 the first applicant divorced V.B., but they continued living in
the same apartment.
The beatings continued, as confirmed by seven
medical reports between September 2007 and January 2008 attesting to light
injuries to the first applicant’s body caused by “blunt objects with a limited
surface”. All the reports were prepared at the request of the Centru district
police in Chişinău following complaints by the first applicant. The
first applicant’s description of the origin of her injuries in all those
medical reports was that V.B. had beaten her.
On 1 April, 7
August, 7 September and 28 November 2007, as well as on 10 and 29 April
2008 the courts adopted six administrative decisions concerning the above
beatings. The first of them terminated the proceedings in view of the parties’
friendly settlement of the proceedings. Another terminated the proceedings because
of the expiry of the three-month limitation period for imposing an
administrative sanction on V.B. In the four other cases the courts fined V.B. for
beating and insulting her, although in one of them the court noted that the
first applicant had provoked him. The fines imposed ranged from 140 to 300
Moldovan lei (MDL, the equivalent of, respectively, 8.65 to 18 euros (EUR) at
the relevant time). V.B. paid all those fines. It appears from the parties’
statements that on an unknown date the prosecution initiated criminal proceedings
against V.B. for attempted rape, but on 14 May 2008 the applicant withdrew her
complaint and the proceedings were discontinued.
According to a certificate issued by the Centru
district police office, V.B. has been registered for supervision by that office
as a “family trouble-maker” since 2007.
B. The court proceedings initiated by the first
applicant
On an
unknown date in 2008 the first applicant lodged a civil action against V.B.
seeking his eviction from the apartment. She relied on the evidence of V.B.’s
violent behaviour. V.B. lodged a counterclaim, asking for the rooms in the
apartment to be divided between himself and the rest of his former family.
On 23 June 2008 the Centru District Court allowed
the first applicant’s action and rejected that of V.B. The court found that V.B.
had been violent towards the first applicant and had insulted her in front of
their children, as evidenced by the medical reports and court decisions.
On 30 October 2008 the Chişinău Court
of Appeal upheld that judgment. In addition to the evidence relied on by the
first-instance court, the Court of Appeal heard the two young men, who
confirmed their mother’s testimony and asked for their father’s eviction.
On 20 May 2009 the
Supreme Court of Justice quashed the lower courts’ judgments and adopted a new
one, rejecting the first applicant’s claims and accepting that of V.B. The
court found that the lower courts had erroneously concluded that V.B. had
systematically abused the first applicant. It noted that one of the court
proceedings in which V.B. had been accused of beating the first applicant had
been discontinued after the parties’ settlement of the case, while another had
been discontinued because of the expiry of the time-limit for imposing a fine.
In one of the remaining four decisions it had been mentioned that the applicant
herself had provoked V.B.’s violence. The other three decisions were
insufficient to prove systematic violent behaviour. Moreover, it had not been
proved that V.B. suffered from alcohol or drug dependency. According to a
certificate from the local apartment owners’ association, V.B. had not been
known for causing trouble. In addition, V.B. had proposed to the first
applicant that they privatise the apartment and sell it so that they could buy
separate apartments, but the first applicant had refused. The court also found
that the parties could continue living in their apartment and that V.B. could
take one of the rooms, leaving the two other rooms to the applicants. There
would be no change to the common areas. The judgment was final.
C. Events after the judgment of the Supreme Court of
Justice
Between 11 June 2009 and 5 February 2010 the
first applicant spent time in hospital having treatment for tuberculosis. According
to a medical certificate issued on 30 August 2011 by the applicants’ family
doctor, she is recommended, inter alia, to avoid stress.
Following the
first applicant’s complaint to the Court V.B. continued behaving violently
towards her. On 19 August 2010 he was fined administratively in the amount of
MDL 400 (EUR 25.5 at the time) for insulting the first applicant. On the second
occasion, after communication of the present application to the respondent
Government, V.B. was fined MDL 200 (EUR 12.2) on 29 August 2011 for
violence against the first applicant. According to a medical report made on 23
August 2011, the first applicant declared that V.B. had tried to rape her in
the evening of 21 August 2011, but had not succeeded because of her
resistance. The doctor found injuries on her body, caused by “blunt objects with
a limited surface”, as follows: oval haematomas measuring 1.5 x 1 cm and 4 x 3cm
on various parts of her arms, the lower part of her left thigh and the middle part
of her right thigh, as well as on various parts of both legs.
On 1
September 2011 the first applicant requested a court protection order for her
and her sons. She described the latest events and the risk of further violence
against her, as well as the authorities’ inability or unwillingness to ensure
her own and her sons’ physical and psychological safety. In accordance with the
provisions of Law no. 45 (see paragraph 21 below) she asked for V.B.’s
temporary eviction from the common apartment, without deciding on the ownership
of any assets; V.B.’s obligation not to come closer than 200 metres to her or her
children and not to contact any of them, as well as not to visit the place of
work or study of any of the applicants.
On 2
September 2011 the Centru District Court adopted a protection order, valid for
three months, agreeing to some of the requests, namely to stay at least 200 m
away from the first applicant, not to contact her and not to visit her place of
work. The court refused to order V.B.’s temporary eviction from the apartment.
It found that he had acted violently against the first applicant, but that “it
had not been established that [V.B.] had applied physical and/or psychological
violence to [the second and third applicants]”. At the same time, V.B. had no
alternative accommodation and in addition his right to use a part of the
disputed apartment had been confirmed by a final judgment of the Supreme Court
of Justice of 20 May 2009 (see paragraph 14 above). According to the
Government, this order was brought to the attention of the local police and
V.B.’s behaviour was subsequently monitored.
The
first applicant appealed, stating that by preserving V.B.’s right to live in
the apartment with her the authorities had effectively put her at risk of
further ill-treatment. Also, without his removal from the apartment at least
temporarily the court’s protection order, in the part concerning V.B.’s staying
at least 200 metres away from her, was deprived of any meaning and did not
prevent any further ill-treatment or protect her against inhuman and degrading
treatment caused by a private individual, despite a positive obligation to do so
under the Convention. She added that according to a letter from the Social
Assistance department of Chişinău Municipal Council, the apartment in
which the first applicant and V.B. lived was composed of three rooms, two of
which were suitable for living in, but only one was connected to the heating
system.
On 2 November 2011 the Chişinău Court of Appeal rejected the first
applicant’s appeal, for the same reasons as those relied on by the
first-instance court. This decision was final.
II. RELEVANT NATIONAL AND INTERNATIONAL MATERIALS
A. Relevant domestic law
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.”
22. Article 102 of the Housing
Code (in force since 3 July 1983) reads as follows:
Article 102. Eviction without allocating another
dwelling.
“If the tenant, members of his or her family, or others living
with them ... systematically break the ... rules of living together, making it
impossible for the others to live together with them in the same apartment or
house, and if the measures of prevention and public influence did not bring any
result, at the request of ... interested persons those responsible shall be
evicted, without allocating them another dwelling. ...”
. On
9 July 2010 Parliament adopted amendments to the Civil Code and the Code of
Criminal Procedure (Law no. 167, in force since 3 September 2010),
instituting protection measures for victims of domestic violence similar to
those listed in Law no. 45, cited above.
The relevant
provisions of the Criminal Code read as follows:
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.”
Under Articles 152 and 155 of the Criminal Code, an action causing less
severe bodily harm, as well as threatening with such harm, are offences
punishable by periods of imprisonment or community work.
B. Relevant international material
A summary of the relevant international
materials has been made in the case of Opuz v. Turkey (no. 33401/02, §§ 72-86,
ECHR 2009) and Eremia v. the Republic of Moldova (no. 3564/11, §§ 29-37, 28 May
2013, not yet final).
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 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. ...
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
The applicants complained that the first
applicant had been subjected to ill-treatment by V.B. and that the State
authorities had not done enough to protect her from such ill-treatment. She
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 Government submitted that the applicants had
failed to exhaust available domestic remedies. In particular, the first
applicant had not asked for a protection order from a court if she really felt
threatened by V.B.
The Court notes that at the time when the
relevant complaints were made to the domestic courts in 2008 (see paragraph 11 et seq. above) the second and third applicants were adults and could lodge
themselves court actions if they intended to do so. However, they did not lodge
any court action or made any other complaints, nor did they submit to the Court
any evidence that they had authorised their mother to lodge such court actions
or complaints in their name.
Accordingly, the Court accepts the Government’s objection
concerning the second and third applicants’ failure to exhaust domestic
remedies. This part of the application must thus be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
The Court considers that the Government’s
objection concerning the first applicant’s failure to exhaust domestic remedies
is closely related to her complaint about the actions taken by State
authorities in response to her complaints. It therefore joins this objection to
the merits of the complaint under Article 3 of the Convention.
B. Merits
1. The parties’ submissions
(a) The first applicant
The first applicant submitted that the
authorities had not done enough to protect her against treatment contrary to
Article 3 of the Convention caused by V.B. They had failed to evict the
aggressor and effectively found that his property right had precedence over her
right not to be subjected to ill-treatment. Moreover, although the courts had
found that V.B. had acted violently towards her, they had applied insignificant
sanctions which had no effect on V.B.’s behaviour. The situation did not change
even after communication of the present application to the respondent
Government, since V.B. had attacked her on 21 August 2011.
Moldovan authorities kept referring to the
judgment of 20 May 2009 (see paragraph 14 above) as the reason not to evict V.B.
despite evidence of his violent behaviour towards her and in spite of her
argument that without an eviction the protection order could not be effective. Even
though she had withdrawn her complaint for fear that elements of her private
life would be divulged to the public, the authorities should have continued the
examination of the case against V.B. In her opinion, Moldova was one of the
very few countries in the Council of Europe where the initiation and
continuation of a criminal investigation of a crime as serious as rape depended
entirely on the alleged victim’s continued pressing of charges against the
alleged assailant. Given the vulnerable state of women victims of domestic
violence and rape, the discontinuation of the proceedings could only have taken
place after a very thorough investigation, unlike in the present case.
Moreover, Moldovan law provides expressly for
the possibility to evict a tenant who, by his own destructive behaviour, makes
it impossible for the other tenants to live in the same apartment (see
paragraph 22 above). However, the courts did not
give any reason for not following this provision of the law in the present
case.
There was no evidence that V.B. intended to sell
his part of the apartment, even if it were to be privatised. Nor was there any legal
basis for forcing him to do so after privatisation. In any event, she had
expressly asked the courts not to decide on the ownership of the apartment but
to offer her protection by taking temporary measures against V.B.
(b) The Government
The Government noted that on 14 May 2008 the
first applicant had withdrawn her initial complaint of attempted rape by V.B.
on 20 April 2008 (see paragraph 9 above). She had also failed to submit video
evidence of that attempted rape, which she had previously claimed was
available. Therefore, her own actions resulted in the discontinuation of the
criminal proceedings against V.B.
Unlike in other cases,
such as Opuz, cited above, in the present case there was no real and
imminent risk of the first applicant’s ill-treatment. Moreover, the courts have
penalised V.B. for violent acts on several occasions, and the authorities had
registered him as a “family trouble-maker”. After the adoption of the
protection order of 2 September 2011 the authorities took additional steps by
informing the local police and V.B. himself and by making checks on his
behaviour on a regular basis (see paragraph 18 above).
As to the civil court action which the first
applicant initiated against V.B. and which ended with the judgment of 20 May
2009, this was not a real attempt to defend herself against any risk of
violence but rather an attempt to obtain V.B.’s share of the common apartment,
as found by the Supreme Court of Justice. That court also found that the
evidence in the file was insufficient to establish a systematic breach of the
rules of living together. Finally, it was clear that the first applicant had
lodged her application with the Court some six months after the cessation of
violent acts towards her. This proved once more the absence of a real risk of
further domestic violence.
2. The Court’s assessment
(a) General principles
42. 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).
46. 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, the Court notes first the
undisputed fact that V.B. has beaten the first applicant on a number of
occasions (see paragraphs 9 and 16 above). As is clear from the medical
certificate of 23 August 2011 (see paragraph 16 above), the doctor found various bruises on the first applicant’s body and noted her explanation that V.B.
had tried to rape her.
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 first applicant’s
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 42-46 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, including against members of one’s own family (see
paragraphs 24 and 25 above). Moreover, the law provided for protective measures
for the victims of family violence (see paragraph 21 above), as well as, more generally, for the eviction of persons who systematically break the rules of
living together (see paragraph 22 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 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).
It is clear from the file that the national
authorities were well aware of V.B.’s violent behaviour since they sanctioned
him administratively on a number of occasions (see paragraphs 9, 16 and 18 above). It is therefore necessary to determine whether the actions taken
by them to protect the first applicant were sufficient to satisfy their
positive obligations under Article 3.
The Court notes that the local authorities,
namely the police and the courts, did not remain totally passive. Following each
incident involving violence, the first applicant was taken for medical
examination and on one occasion criminal proceedings were instituted against V.B.
(terminated after the first applicant withdrew her complaint). On five occasions
the courts fined V.B. (see paragraphs 9 and 16 above). However, none of these
measures were sufficient to stop V.B. from perpetrating further violence. In
particular, the Court notes that the fines applied to V.B. were small (see
paragraphs 9 and 16 above) and did not have any deterrent effect.
The Government blamed the applicant for
withdrawing her criminal complaint about rape and failing to submit evidence in
her possession, which prevented the authorities from continuing criminal
proceedings against V.B. The Court recalls its finding that, amongst the Member
States of the Council of Europe, in the context of withdrawal of complaints
about domestic violence “there appears to be an acknowledgement of the duty on
the part of the authorities to strike a balance between a victim’s Article 2,
Article 3 or Article 8 rights in deciding on a course of action” and that “... the more serious the offence or the greater the risk of further
offences, the more likely that the prosecution should continue in the public
interest, even if victims withdraw their complaints” (see Opuz,
cited above, §§ 138 and 139). In the present case, the authorities did not
make an analysis of whether the seriousness and number of attacks which the
first applicant had suffered on the part of V.B. and the seriousness of the first
allegation of rape had required to pursue the criminal investigation, despite
her withdrawal of that complaint. Moreover, despite a clear second allegation
of an attempted rape on 21 August 2011, coupled with medical evidence at least
partly confirming that allegation (see paragraph 16 above), it appears that the authorities did not institute of their own motion any investigation of that
matter, again limiting themselves to administrative proceedings.
The Court also notes that the first applicant
tried to obtain protection from further violence against her by asking for V.B.’s
eviction from their common apartment. However, in its decision of 20 May 2009
the Supreme Court of Justice rejected her claims, finding that the court action
was aimed at affecting V.B.’s right to use the apartment rather than at
protecting the first applicant from danger. It also found that, despite the six
administrative cases against V.B. for violent or insulting behaviour against
the first applicant, there was insufficient evidence that he had systematically
breached the rules of living together (see paragraph 14 above).
Subsequently, when the applicant asked for the
temporary eviction of V.B. from their common apartment after the attack of 21
August 2011 (see paragraph 17 above), the courts referred to the decision of 20
May 2009 as the ground for rejecting her request. The Court considers that the
domestic courts should have taken into consideration the factual developments
which had taken place after the decision of 20 May 2009 had been adopted,
namely the two additional attacks by V.B. (see paragraph 16 above).
It was undisputed that V.B. had again assaulted
the first applicant in their common apartment. This was the ground for the
courts’ adoption of a protection order on 1 September 2011 (see paragraph 18 above). However, while a number of measures were ordered which were aimed at
preventing any contact between V.B. and the first applicant, including a
prohibition on his approaching her or her place of work or of contacting her by
any means, V.B. was allowed to continue living in their common apartment. The
Court agrees with the first applicant’s argument, also made before the
Chişinău Court of Appeal (see paragraph 19 above), that allowing V.B. to live in the same apartment as his victim rendered ineffective other measures in
the protection order and exposed her to the risk of further ill-treatment.
It would also appear that the perspective of
meeting her aggressor in her own apartment subjected the first applicant to
constant fear of further ill-treatment, given the number of past attacks which
she had suffered. This fear was sufficiently serious to cause the applicant
suffering and anxiety amounting to inhuman treatment within the meaning of
Article 3 of the Convention.
The Court is unable to accept the Government’s
argument that the applicant did not risk any further violence and was in fact
pursuing the goal of obtaining V.B.’s part of the apartment, the more so that the
eviction which she sought in 2011 was of a temporary nature and that she
expressly asked the courts not to decide on the property issue (see paragraph 17 above). This should have allowed the domestic courts to properly balance the two
competing rights protected under the Convention (the applicant’s right not to
be subjected to ill-treatment and V.B.’s right to use the apartment), by
offering real protection to the applicant, while not depriving V.B. of his
possessions. They could have also considered whether the applicant’s argument
based on Article 102 of the Housing Code (see paragraph 22 above) had any substance. However, they failed to do
so.
In view of the
above, the Court concludes that the authorities have not satisfied their
positive obligation under Article 3 of the Convention to protect the first applicant
from ill-treatment.
There has accordingly been a violation of
Article 3 of the Convention. In light of all the elements established above,
the Government’s argument that the first applicant has not exhausted available
domestic remedies is to be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicants complained that the domestic
courts’ refusal to order V.B.’s temporary eviction from their apartment
subjected them to suffering which was incompatible with their right to private
life. They relied on 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 Government submitted that the applicants had
failed to exhaust available domestic remedies.
The Court considers that the second and third
applicants’ complaint under this provision is to be dismissed pursuant to
Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies,
for the same reasons as those noted in respect of their complaint under Article
3.
As for the first applicant’s complaint, the
Court finds that the request made on 1 September 2011 (see paragraph 17 above), constitutes proper exhaustion of domestic remedies.
The Court notes that the first applicant’s complaint
under Article 8 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
1. The parties’ submissions
The first applicant submitted that the
authorities had failed to comply with their positive obligation under Article 8
of the Convention to protect her from V.B.’s interference with her private
life. She argued that as a result of the domestic courts’ decisions she was
essentially being forced to flee her home, even though - just as V.B. - she had
nowhere else to go. She argued that the judgment of the Supreme Court of
Justice of 20 May 2009 placed a disproportionate burden on her and resulted in
an interference with her private life which was disproportionate to the aim of
protecting V.B.’s right to use the apartment.
The Government submitted that the authorities
had taken all reasonable steps in response to the first applicant’s complaints,
by subjecting V.B. to administrative sanctions and by monitoring him as a
“family trouble-maker”, with an additional level of monitoring instituted after
the adoption of the protection order of 2 September 2011. However, they could
not continue to prosecute V.B. after the first applicant’s withdrawal of her
criminal complaint against him accusing him of rape. Since the measures taken prevented
against any further violence, the first applicant’s insistence on V.B.’s
eviction was aimed at taking away his part of the apartment and was not a real
attempt to obtain protection.
2. The Court’s assessment
(a) General principles
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, and
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 this
concept includes a person’s physical and psychological integrity. Under Article
8 the States have a duty to protect the physical and psychological
integrity of an individual from the actions 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
v. Slovakia, no. 2660/03, § 46,
30 November 2010). The Court notes in this respect that the
particular vulnerability of the victims of domestic violence and the need for
active State involvement in their protection has been emphasised in a number of
international instruments (referred to in the cases Bevacqua, cited
above, §§ 64-65, and Sandra Janković v. Croatia, no. 38478/05, §44-45,
ECHR 2009-... (extracts)).
(b) Application
of these principles in the present case
71. In
the present case, the Court notes that the applicant’s physical and moral integrity, which
is covered by the concept of private life (see X and Y v. the Netherlands,
26 March 1985, § 23, Series A no. 91), has been affected by periodic abuse
on the part of V.B. It refers, in this respect, to its findings made in
paragraphs 54-58 above concerning the suffering and anxiety which the applicant
felt in her own apartment, being faced with the real possibility of
ill-treatment there.
. Moreover, the authorities were well
aware of these circumstances, as they had been submitted to the police and the domestic
courts. In
the Court’s view, this should have provoked the authorities to act, as they
were required in accordance with their positive obligations under Article 8 of
the Convention.
The Court reiterates that its task
is not to substitute itself for the competent domestic 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 powers.
The Court will therefore examine whether the national authorities, especially
the courts, in handling the case, have been in breach of their positive
obligation under Article 8 of the Convention (see Sandra Janković, cited above, § 46).
74. It
notes in this respect that in reversing the lower courts’ decisions on 20 May
2009 the Supreme Court of Justice did not find the six sets of administrative
proceedings against V.B. as proving with sufficient certainty a pattern of his
violent behaviour against the first applicant. In the 2011 proceedings, the courts
simply referred to the judgment of 20 May 2009 to confirm V.B.’s right not to
be evicted from the apartment, without any consideration of the further acts of
violence committed by him in 2010 and 2011. They did not make any attempt to
determine whether V.B.’s right to use the apartment had been exercised in a
manner violating the first applicant’s rights under Article 8 of the Convention
and in breach of Article 102 of the Housing Code (see paragraph 22 above).
75. In
such circumstances, the Court concludes that the domestic authorities did not
properly comply with
their
positive obligations under Article 8 of the Convention. They failed to balance
the rights involved and effectively forced the first applicant to continue risking
being subjected to violence or to leave home.
There
has, accordingly, been a violation of Article 8 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants also argued that the judgment of
the Supreme Court of Justice of 20 May 2009 had been arbitrary and not based on
the evidence in the case. The first applicant also complained of a violation of
her property right, since due to the judgment of the Supreme Court of Justice she
had lost a part of the apartment.
Having regard to all
the material in its possession, the Court
finds that these complaints do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention. It follows that this part of
the application must be rejected as being manifestly ill-founded, pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
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. Non-pecuniary damage
The first applicant claimed EUR 32,000 in
compensation for the violation of her rights under Articles 3 and 8 of the
Convention. She referred to the Court’s case-law in domestic violence cases and
noted that the violation of her rights was on-going and that the authorities had
shown tolerance towards her aggressor.
The Government considered that no award should
be made in the absence of a violation of the applicant’s rights. As an alternative,
they submitted that the amounts claimed were excessive in view of the Court’s
case-law in similar cases.
The Court considers that the violations it has
found must undoubtedly have caused the first applicant distress. Taking into
account the circumstances of the case and having regard to its case-law, the
Court awards her EUR 15,000.
B. Costs and expenses
The applicant claimed EUR 3,485 for costs and
expenses and submitted an itemised list of hours which her lawyer had spent
working on the case (thirty-eight hours at rates ranging between EUR 50 and EUR
100 per hour).
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.
The Court reiterates that in order for costs and
expenses to be included in an award under Article 41, it must be established
that they were actually and necessarily incurred and are reasonable as to
quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII).
Having regard to the
itemised list submitted and the complexity of the case, the Court awards the
applicant EUR 3,000 for costs and expenses.
C. Default interest rate
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. Joins to the merits the Government’s
objection concerning the first applicant’s failure to exhaust domestic remedies
and rejects it;
2. Declares admissible the first applicant’s complaints
under Articles 3 and 8 of the Convention, and the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 3 of the Convention;
4. Holds that there has been a violation of
Article 8 of the Convention;
5. Holds
(a) that the respondent State is to pay the first applicant,
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 3,000 (three thousand euros), plus any tax
that may be chargeable to the applicant, 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;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 16 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
