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THIRD
SECTION
DECISION
Application no.
59968/09
M.T. and S.T.
against Slovakia
The
European Court of Human Rights (Third Section), sitting on
29 May 2012 as a Chamber composed of:
Josep
Casadevall, President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 28 October 2009,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
first applicant, M.T., is the mother of the second applicant, S.T.
They are Slovak nationals, who were born in 1959 and 1990
respectively, and live in Košice. They were granted anonymity
under Rule 47 § 3 of the Rules of Court.
- The
applicants were represented before the Court by Ms I. Rajtáková,
a lawyer practising in Košice.
- The
Government of the Slovak Republic (“the Government”) were
represented by their Agent, Ms M. Pirošíková.
A. The circumstances of the case
The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The applicants’ family background
- In
1983 the first applicant married A. In addition to the second
applicant, another child, B., was born in the marriage, in 1986.
The
family lived together in one flat.
- The
social services were involved with the family in 1995 when A. appears
to have requested that the children be entrusted to his care and
custody.
- The
care and custody of the children was subject to a decision of
5 February 1996, which appears to have entrusted the children
into the care and custody of the first applicant.
- On
22 June 1996 there was an altercation between the first applicant and
A., in the course of which the first applicant suffered bodily
injuries. She was unable to work until 2 July 1996. The incident was
investigated on the suspicion that the actions of A. had amounted to
a criminal offence. However, no charges were brought against him
owing to the absence of the first applicant’s consent, this
being a prerequisite for his prosecution.
- Also
in 1996 A. filed for divorce.
- On
4 March 1997 A. again applied for the children to be entrusted to his
care and custody.
- From
21 to 26 August 1997 and from 2 September to 3 December 1997
the first applicant voluntarily received in-patient psychiatric
treatment for alcoholism.
- On
19 December 1997 the Košice I District Court (Okresný
súd) approved a parental agreement between the first
applicant and A., pursuant to which the second applicant and B. were
to be in the care and custody of A. and the first applicant would
contribute to their maintenance.
- In
1999 A. withdrew his petition for divorce, as a result of which the
proceedings were discontinued.
- On
24 May 2002 the first applicant filed for divorce.
- On
26 March 2003 the District Court issued an interim measure
forbidding A. to enter the flat in which the family lived pending the
outcome of the proceedings aimed at excluding him from using the flat
with permanent effect.
Having
been quashed on appeal, the interim measure was reinstated by the
District Court on 17 June 2003, and eventually became final and
binding. No information has been made available concerning any
further progress in or the outcome (if any) of the proceedings on the
merits of this matter.
- Meanwhile,
on 7 April 2003, at the first applicant’s request, the District
Court entrusted her with the care and custody of the children and
ordered A. to contribute to their maintenance.
- On
8 April 2003 A. left the family household.
- In
the divorce proceedings, on 15 April 2004, a sworn expert in
psychology, C., filed a report recommending, inter alia, that
the second applicant be entrusted to the care and custody of the
first applicant. At the same time, however, she did not recommend
that the second applicant’s contact with A. be restricted. The
parties did not contest the report.
- On
8 September 2004 the District Court issued a decree of divorce,
entrusted the second applicant to the care and custody of the first
applicant and ordered A. to contribute to the second applicant’s
maintenance.
2. Impugned actions of A.
- In
the judgments mentioned below, courts at two levels of jurisdiction
established, inter alia, the following facts:
“At unspecified times between 1996 and 8 April
2003, excluding the period between August and December 1997 when [the
first applicant] was receiving in-patient treatment for alcohol
dependency, [A.] repeatedly mistreated [the applicants] and [B.],
giving them orders about when to go to sleep, ordering them or
forbidding them to carry out certain activities, waking the
children up at 7 a.m. even on days when they did not have to go to
school and strictly regulating what they were to eat and in what
quantity.
...
[A.] restricted [the first applicant] from doing grocery
shopping, prohibited her from eating food bought by him, swore at
her, humiliated her and undermined her authority in front of the
children. ...
[A.] ridiculed and humiliated [the second applicant] by
swearing at her in a vulgar way which, in an incident in February
2003 when she punched [B.] breaking the glass door of a cupboard as a
result, made [the second applicant] tremble and wet her pants, on
which A. commented ‘look how scared you got, you half murderer,
you wet [your pants]’.
On an unspecified date in October 2003, following an
argument, [A.] threatened to hit the [first applicant] with a
grinding machine if she didn’t be quiet.”
3. Prosecution of A.
- On
1 May 2003, following the applicants’ criminal complaint, A.
was charged with an offence of abuse of a close person or of a person
in respect of whom he held a position of trust (týranie
blízkej osoby a zverenej osoby) within the meaning of
Article 215 §§ 1 ((a) and (b)) and 2 ((c) and (d)) of the
Criminal Code (Law no. 140/1961 Coll., as applicable at the relevant
time) on the factual basis described above.
- On
5 October 2004 the Public Prosecution Service (“the PPS”)
indicted A. to stand trial in the District Court on these charges.
- On
6 December 2004 A. was acquitted at first instance. However, the
judgment was quashed on 17 March 2005 by the Košice Regional
Court (Krajský súd) following an appeal by the
PPS, and the matter was remitted to the District Court for additional
evidence to be gathered.
- On
10 November 2008 A. was again acquitted and a subsequent appeal
by the PPS was dismissed on 29 January 2009.
- The
courts examined oral evidence, which was given at several hearings
both before the District Court and the Regional Court, including on
28 May, 23 June and 27 August 2008, by A., the applicants, B. and
three other witnesses. The courts also examined documentary evidence
and expert evidence, as described below, including the contents of
the case file concerning the divorce and the expert evidence
contained therein.
- The
courts established the facts as mentioned above, but came to the
conclusion that the behaviour of A., who had one previous conviction
for a violent offence, had in the present case not constituted
domestic violence.
- In
reaching this conclusion, the courts established that although A. had
not been suffering from a mental disorder such as to impair his
capacity to understand and control his behaviour, his actions had
been influenced by his distorted perception of the events, which he
had not been in a position to see objectively, as he had been
acting from the perspective of his subjective attitude that he
thought was right. A. had not been motivated by a desire to hurt
anyone, but rather to address the family’s destitute situation.
- The
courts also found that, in assessing the impugned events, it had to
be taken into account that the family situation had been unpleasant
since 1995, which was partly due to the first applicant’s
drinking, and that the conflicts between 2000 and 2003 had had the
family’s destitute financial situation as a background.
- The
courts also observed that since 1 September 1999 the applicable law
specifically provided that domestic violence was to be considered
as abuse under Article 215 of the Criminal Code. In that
context, without going into any detail, they referred to the United
Nations Convention on the Rights of the Child (1989), the United
Nations General Assembly Declaration on the Elimination of Violence
against Women (1993), Recommendation of the Committee of Ministers of
the Council of Europe Rec(2002)5 and an explanatory memorandum
thereto.
- The
courts found that the regime imposed by A. on the family was
justified in view of its financial standing and B.’s obesity.
Although swearing at and punishing the second applicant was not an
educational method to be approved of, it did not amount to abuse in
legal terms.
- However,
the restrictions imposed on the first applicant as regards the
purchase and consumption of food amounted to economic violence, in
particular in so far as the first applicant had neither had a job nor
any other independent source of income.
- It
was observed that the first applicant suffered from recurring
depression and that the second applicant had a temporary behavioural
disorder in relation to family.
- Nevertheless,
their conditions were not necessarily the result of A.’s
authoritative behaviour and, as far as the second applicant was
concerned, it could also have been caused by the bad family
situation, the first applicant’s alcoholism and the divorce of
the second applicant’s parents.
- The
Court of Appeal also specifically observed that, when the first
applicant was hospitalised in 1997, A.’s authoritative
tendencies had had the perfect opportunity to manifest themselves.
However, they had not and he had even been entrusted with the care
and custody of the children.
- The
courts concluded that A. had had no knowledge that his behaviour
could have had negative psychological consequences on the members of
his family. He therefore could not have directly intended such
consequences.
- As
the offence under Article 215 of the Criminal Code presupposed
criminal intent and no such intent was present, the actions of A. did
not constitute a criminal offence.
4. Constitutional complaint
- The
applicants then brought a complaint under Article 127 of the
Constitution to the Constitutional Court (Ústavný
súd) arguing that the outcome of the criminal proceedings
was incompatible with their rights protected under Articles 3 and 8
of the Convention and their constitutional counterparts. They
submitted, inter alia, that the ordinary courts had confused
the legal categories of intent and motive and had thereby reached an
absurd conclusion where the arguably positive motivation of the
accused had made him immune to punishment for his unlawful actions
while, at the same time, there was nothing in the expert evidence
suggesting that his individual criminal liability should be
restricted on grounds linked to his mental condition. In their view,
the actions of the accused had been committed with what amounted to
at least indirect intent, which was sufficient for making his actions
contrary to criminal law, that is to say that he had been aware that
his actions might have been contrary to criminal law and had
acquiesced in them being such.
- On
7 July 2009 the Constitutional Court declared their complaint
inadmissible as manifestly ill-founded. It reiterated that it was not
its task to review assessments of the facts and application of
the law by the ordinary courts, and found that the Court of Appeal
had supported its decision with adequate and comprehensible reasoning
that was constitutionally acceptable.
5. Harm suffered by the applicants
- According
to the finding of a psychologist, D., on an unspecified date in 2003,
the second applicant was suffering from post-traumatic stress
disorder owing to A. constantly humiliating, threatening, shouting,
and swearing at her.
- In
a report of 15 April 2004, in the context of the divorce proceedings
(see paragraph 17 above), another psychologist, C., concluded, inter
alia, that the emotional problems of the second applicant in
relation to A. were the consequence of the latter’s abrasive
behaviour, psychological maltreatment and manifestations of physical
aggression towards the members of the family.
- In
two separate reports, of 25 and 31 October 2005, in the context of
the criminal proceedings against A., two psychiatrists, E. and F.,
made conclusions that can be summarised as follows.
At
the time of the events underlying the indictment, the second
applicant was suffering from a family-related behavioural disorder.
A.’s behaviour towards her had been of a mocking nature rather
than aggressive.
The
first applicant had a history of psychiatric treatment for a periodic
depressive disorder of medium gravity since 1996. It could be
“confirmed with certainty that the recurrence of the disorder
[was] due to unfavourable factors in the family, as a result of
tyrannical behaviour by [A.] towards her and the children”.
B. Relevant domestic law and practice
1. Constitutional Court Act (Law no. 38/1993 Coll., as
amended)
- Section
53 deals lays down the rules in respect of ordinary remedies to be
used prior to an individual complaint under Article 127 of the
Constitution. It provides:
“1. A[n] [individual] complaint is not
admissible if the complainant has not exhausted legal remedies or
other legal means, which a statute effectively provides to [the
complainant] with a view to protecting [the complainant’s]
fundamental rights or freedoms, and which the complainant is entitled
to use under special statute.
2. The Constitutional Court shall not declare
a[n] [individual] complaint inadmissible even if the condition under
sub-section 1 has not been fulfilled, if the complainant establishes
that [the complainant] has not fulfilled this condition owing to
reasons worthy of particular consideration.”
2. Criminal Code of 1961 and relevant jurisprudence
- At
the relevant time the offence of abuse of a close person or of
a person in respect of whom the offender holds a position of
trust was defined by Article 215 of the 1961 Criminal Code (see
paragraph 20 above).
- The
offence could be committed against a person who was close to, or was
in the care or education of, the perpetrator, inter alia, by
any of the following: beating, kicking, punching, causing wounds of
various kinds, bullying, contemptuous treatment, threatening, causing
fear or stress, or any other behaviour endangering physical and
psychological well-being, denying food, rest or sleep and unjustified
restriction on access to property.
- In
order for such behaviour to constitute the offence, it had to be
committed intentionally (Article 3 § 3, in conjunction with
Article 215).
- The
notion of intent was defined in Article 4 of the Criminal Code.
Intent could be direct, that is to say when the perpetrator wanted to
violate or endanger the interest protected under the Code. Intent
could also be indirect, that is to say when the perpetrator was aware
that his behaviour could cause such a violation or endangerment and
was acquiesced in it.
- In
its decision (uznesenie) of 22 November 1995 in case no. Tzo-V
4/95, the Supreme Court (Najvyšší súd)
held that the negligent nature of the accused’s behaviour in
respect of the possible impact on the life and limb of another did
not predetermine of itself that the accused was acquiesced in it.
- In
its decision in case no. 7To 6/02 the Supreme Court held that
acquiescence in connection with indirect intent expresses an active
voluntary element in the offender’s attitude towards causing
the consequence that is of relevance in criminal law, that is to say
a consequence envisaged (and expressed) in a specific provision
of the Criminal Code. Acquiescence of the offender at the time of the
offence in the possible consequences is hinted at by the character of
the offender’s actions, that is to say the intensity of the
aggression, its duration, physical disposition of the victim and the
offender, the part of the victim’s body targeted by the attack,
the number of attacks and the like, as well as the behaviour of the
offender after the act (as a subsidiary consideration), and
whether the offender counted on a specific circumstance which, if
materialised, was capable of preventing the consequence.
- In
its judgment (rozsudok) in case no. 3Tz 11/2011 the Supreme
Court held that individual criminal liability was based exclusively
on culpability, which must include all features characterising the
objective side of a criminal offence, that is to say also the causal
link between the actions of the offender and the consequences of the
offence.
3. Civil Code (Law no. 40/1964 Coll., as amended) and
relevant jurisprudence
- For
the relevant provisions, which concern protection of personal
integrity and its vindication, see, for example, the Court’s
judgment in Ringier Axel Springer Slovakia, v. Slovakia (no.
41262/05, § 55, 26 July 2011).
- In
its judgment of 19 April 1994 in case no. 1 Co. 25/94 the Supreme
Court held that the fact that a person’s behaviour had as an
act (skutok) been subject to criminal proceedings or civil
proceedings did not preclude that subsequent reactions of other
persons to that behaviour be subject to proceedings for protection of
personal integrity under Articles 11 et seq. of the Civil
Code. The case concerned an action for protection of personal
integrity in connection with the claimant’s dismissal from his
job on account of fraud of which he had ultimately been acquitted.
- In
a judgment of 20 June 2007 in case no. 11 C 99/2006 the Čadca
District Court adjudicated on an action for protection of personal
integrity by a divorced woman against her former husband. The court
ordered the defendant to refrain from interfering with the claimant’s
personal integrity (threats to life and limb and verbal insults) and
not to go within thirty metres of her.
4. Code of Civil Procedure (Law no. 99/1963 Coll., as
amended)
- Articles
74 et seq. regulate interim measures. More precisely, the
relevant part of Article 76 provides that:
“1. A court may issue an interim
measure ordering a party to proceedings in particular to:
...
(f) refrain from doing something or to suffer
something being done.
(h) temporarily refrain from entering the home of
the person towards whom [the party] is suspected of [having behaved]
violently.
...
3. When issuing an interim measure, the court
shall request that the claimant lodge an action with a court of law
or arbitral tribunal within a time-limit determined by the court;
where the proceedings may be commenced without an action being
lodged, the court shall issue a decision to commence them.”
C. Relevant international material
- For
a summary of relevant international material see the Court’s
judgment in Opuz v. Turkey, no. 33401/02, §§ 72-86 ,
ECHR 2009 ..., in particular the Committee of Ministers of the
Council of Europe’s Recommendation Rec(2002)5 of 30 April 2002
on the protection of women against violence.
- The
Convention on preventing and combating violence against women and
domestic violence, which was adopted by the Council of Europe
Committee of Ministers on 7 April 2011, has not entered into force so
far. Although not yet ratified, it was signed by Slovakia, on
11 May 2011.
COMPLAINTS
- The
applicants complained that the outcome of the criminal proceedings
against A. had been incompatible with their rights protected under
Articles 3 and 8 of the Convention, taken in conjunction with
Article 1 of the Convention.
THE LAW
- The
applicants alleged a violation of Articles 3 and 8 of the Convention,
taken in conjunction with Article 1 of the Convention.
The
Court considers that, in the particular circumstances, the present
case falls to be examined under Articles 8 and 13 of the
Convention, the relevant part of which reads as follows:
“Article 8
1. Everyone has the right to respect for his
private and family life, his home ...
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.”
“Article 13
Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
A. Domestic remedies
- Relying
on the above-cited relevant domestic practice, the Government first
of all objected that the applicants had failed to comply with the
requirement of exhaustion of domestic remedies under Article 35 § 1
of the Convention in that they had failed to assert their rights at
the domestic level by way of an action for protection of personal
integrity under Articles 11 et seq. of the Civil Code. In
reply, the applicants disagreed.
- The
Court reiterates that, in certain situations, effective deterrence
against attacks on the physical integrity of a person requires
efficient criminal-law mechanisms to ensure adequate protection (see
Sandra Janković v. Croatia, no. 38478/05, § 36, 5
March 2009, with further references). The Court is however of the
opinion that this position is in principle not limited to instances
of physical violence but, especially in cases of domestic violence
such as the present case, it may also extend to psychological
violence.
- The
Court also reiterates that where there is a choice of remedies, the
exhaustion requirement must be applied to reflect the practical
realities of the applicant’s position, so as to ensure the
effective protection of the rights and freedoms guaranteed by the
Convention. Moreover, an applicant who has used a remedy which is
apparently effective and sufficient cannot be required to have tried
others that were also available but probably no more likely to be
successful (see Adamski v. Poland (dec.), no. 6973/04,
27 January 2009, with further references).
- In
the present case, the applicants asserted their rights by way of
a criminal complaint and participation in the ensuing criminal
proceedings against A (see paragraphs 20 et seq. above), as well as a
constitutional complaint (see paragraphs 36 and 37 above).
- In
that context, the Court notes that the Constitutional Court, as the
supreme authority charged with the protection of human rights and
fundamental freedoms in Slovakia, had jurisdiction to examine the
applicants’ complaint and to provide redress to them if
appropriate (see, mutatis mutandis, Lawyer Partners a.s. v.
Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08,
3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08,
29552/08, 29555/08 and 29557/08, § 45, ECHR 2009 ...,
with further references), and that such examination is subject to
an exhaustion of ordinary remedies requirement under section 53
(see paragraph 41 above).
- For
that matter, the Court notes that the Constitutional Court
entertained the applicants’ complaint without first requiring
them to exhaust the remedy now relied on by the Government.
- The
Court further observes that in the case of Hajduová v.
Slovakia (no. 2660/03, §§ 36-38, 30 November 2010) it
examined and rejected the effectiveness within the meaning of Article
35 § 1 of the Convention of an action for protection of
personal integrity under Articles 11 et seq. of the Civil Code in a
situation that was found to have amounted to the authorities’
failure, contrary to Article 8 of the Convention, to comply with
their statutory obligation to order the detention of Ms Hajduová’s
former husband in an institution for psychiatric treatment, following
his criminal conviction for having abused and threatened her.
- In
view of all the material at its disposal, and having regard to the
particular vulnerability of victims of domestic violence and the need
for active State involvement in their protection (see Hajduová
v. Slovakia, cited above, § 41, with further references), as
well as the object and purpose of the Convention to guarantee
rights that are practical and effective (see, for example, Matthews
v. the United Kingdom [GC], no. 24833/94, § 34, ECHR
1999 I), the Court concludes that the applicants were not
required under Article 35 § 1 of the Convention to make use of
the remedy referred to by the Government. The Government’s
objection of non-exhaustion of domestic remedies must therefore be
dismissed.
B. Article 8 of the Convention
1. Parties’ arguments
- The
applicants argued in particular that although the courts had
correctly established the facts concerning the behaviour of A., they
had failed to draw appropriate conclusions in that their findings as
to the subjective perceptions and motive of A. had not been supported
by any evidence, that they were irrelevant to the question of his
criminal intent and that they were arbitrary.
- The
Government considered that the treatment to which the applicants had
been exposed had not reached the threshold of gravity under Article 3
of the Convention.
- Moreover,
the Government held the view that the domestic courts’
interpretation and application of the law had been in full compliance
with both established domestic practice and the requirements under
Article 8 of the Convention.
- In
reply, the applicants pointed out that under paragraphs 34 and 35 of
the Appendix to the Committee of Ministers of the Council of Europe’s
Recommendation Rec(2002)5 of 30 April 2002 “[m]ember states
should ensure that criminal law provides that any act of violence
against a person constitutes a violation of that person’s
physical, psychological and/or sexual freedom and integrity, and not
solely a violation of morality, honour or decency; [and] provide for
appropriate measures and sanctions in national legislation ...
penalis[ing] any abuse of the position of a perpetrator, and in
particular of an adult vis-à-vis a child.” In that
respect, the applicants also relied on the Court’s judgment in
the case of X and Y v. the Netherlands (26 March 1985, §
27, Series A no. 91).
- The
applicants also submitted that the facts of the case clearly fell
within the ambit of Articles 3 and 8 of the Convention, citing the
definition of “violence against women” under the
above-mentioned Recommendation.
- Lastly,
the applicants contended that the nature of A.’s motivation had
no legal relevance for the nature of his criminal intent.
2. The Court’s assessment
- The
Court observes, first of all, that there is no doubt that the events
giving rise to the present application pertain to the sphere of
application of Article 8 of the Convention (see, for example, A v.
Croatia, no. 55164/08, § 58, 14 October 2010).
- The
Court reiterates the following relevant principles, as summarised in
its judgment in the case of Hajduová v. Slovakia (cited
above, §§ 45-47, with further references):
- 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 between
individuals. Children and other vulnerable individuals, in
particular, are entitled to effective protection.
- The
concept of private life includes a person’s physical and
psychological integrity. Under Article 8 States have a duty to
protect the physical and moral integrity of an individual from other
persons. To that end they are to maintain and apply in practice an
adequate legal framework affording protection against acts of
violence by private individuals.
- Victims
of domestic violence are of a particular vulnerability and the need
for active State involvement in their protection has been emphasised
in a number of international instruments.
- The
Court’s 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 power of
appreciation.
- The
Court will therefore examine whether Slovakia, in handling the
applicants’ case, has been in breach of its positive obligation
under Article 8 of the Convention (see, for example, Hajduová
v. Slovakia, cited above, § 47; A v. Croatia,
cited above, § 61; and Sandra Janković v. Croatia,
cited above, § 46).
- Turning
to the facts of the present case, the Court observes that the
applicants have not as such criticised the adequacy of the
investigation or the ensuing criminal proceedings conducted by the
domestic authorities against A. The thrust of the applicants’
complaint lies rather in their discontent with the domestic courts’
acquittal of A. and, in particular, with their assessment of his
criminal liability. The Court considers that this complaint has to be
examined against the applicants’ family background as a whole.
- The
marriage finally broke down in 2003, after the first applicant had
filed for divorce in 2002, when the care and custody of the second
applicant and her brother was entrusted to the first applicant, on
7 April, and when A. left the family’s flat a day later.
- It
is also to be noted that, on 26 March 2003, by way of an interim
measure, A. was forbidden to enter the flat and that, after
having first been quashed on appeal, this interim measure was
eventually reinstated on 17 June 2003 and became final and
binding.
- The
Court considers that, from the perspective of Article 8 of the
Convention, the assessment of the authorities’ response to the
impugned behaviour of A. has to be carried out with reference to the
framework outlined above. In particular, the Court finds it of
relevance that A. was excluded from the family’s flat as a
matter of law, that he actually left the family’s home and that
there were never any allegations that he would return, threaten or
harm the applicants again. While it is not entirely clear when the
applicants filed their criminal complaint against him, there has
neither been any indication or allegation that the complaint was not
dealt with with adequate expedition. In fact, it would appear that
criminal charges were brought against A. very promptly, on 1 May
2003.
- As
to the specific question of A.’s criminal liability, the Court
observes, first of all, that the criminal charges against him have
been examined twice by courts at two levels of ordinary jurisdiction,
their last decision then being scrutinised by the Constitutional
Court. In adjudicating on the case, the domestic courts took and
assessed comprehensive documentary, oral and expert evidence,
including expert evidence from other court proceedings in relation to
the family’s break-up.
- Against
the rather complicated family background, it was found that, in the
particular circumstances of the case, no intention to commit the
offence of abuse a close person or a person in respect of whom A.
held a position of trust could be proven.
- The
impugned conclusion appears to be fully consistent with the relevant
judicial practice (see paragraphs 46 to 48 above); no argument to the
contrary has been advanced by the applicants.
- The
Court reiterates that it is not its 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 (see, mutatis mutandis, Opuz v.
Turkey, cited above, § 165).
- The
Court further reiterates that its duty, according to Article 19
of the Convention, is to ensure the observance of the engagements
undertaken by the Contracting States to the Convention. In
particular, it is not its function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as
they may have infringed rights and freedoms protected by the
Convention (see, among many other authorities, Schenk
v. Switzerland, 12 July 1988, § 45, Series A no.
140, and Streletz, Kessler and Krenz v. Germany [GC], no.
34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).
- Furthermore,
the Court reiterates that the right to institute criminal proceedings
and to secure the conviction of a third party as such is not a right
which is included among the rights and freedoms guaranteed by the
Convention (see Perez v. France [GC], no. 47287/99, § 70,
ECHR 2004 I, with further references, and Liģeres v.
Latvia, no. 17/02, § 57, 28 June 2011) and that
there is no absolute right to obtain the prosecution or conviction of
any particular person (see Szula v. the United Kingdom (dec.),
no. 18727/06, 4 January 2007).
- From
that perspective, and being guided by the principle of subsidiarity,
the Court considers that, rather than a strict requirement for
a criminal conviction of A., the crucial criterion for the
assessment of the present case in its specific circumstances is the
overall effectiveness of the protection rendered by the State to the
Convention rights of the applicants.
- The
Court also considers that the carrying out of fully fledged criminal
proceedings against A. must have had a certain general as well as
individual deterrent effect, the combination of which with the
interim measure referred to above resulted in no further affront by
A., while the authorities involved cannot be reproached for any lack
of diligence (compare and contrast, mutatis mutandis, Opuz
v. Turkey, cited above, §§ 167 and 169, and A.
v. Croatia, cited above, § 78).
- Furthermore,
the Court is of the opinion that, in weighing up the adequacy of the
authorities’ response to the impugned behaviour of A., regard
has to be had to the family’s generally disagreeable situation.
- In
view of all the above considerations, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that they do not
disclose any appearance of a failure on the part of the
authorities in any positive obligation to secure to the applicants
their rights under Article 8 of the Convention. Accordingly, the
relevant part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
C. Article 13 of the Convention
- Leaving
aside the question whether the applicants had any “arguable
claim” of a violation of any other provision of the Convention
for the purposes of Article 13, and having examined the case in the
light of the parties’ arguments, the Court finds that no issue
arises under that provision because the applicants did have at their
disposal, and in part actually made use of, the set of criminal-law
and civil-law remedies referred to above.
It
follows that the remainder of the application is also manifestly
ill founded and must likewise be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall
Registrar President
