In the case of Mudric 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.
74839/10) 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 a Moldovan national, Ms Lidia Mudric (“the
applicant”), on 21 December 2010.
The applicant, who had been granted legal aid,
was represented by Ms D. Străisteanu, a lawyer
practising in Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
The applicant alleged, in particular, that the
authorities had not discharged their positive obligations under Articles 3, 14
and 17 of the Convention to protect her from domestic violence and to punish
her aggressor.
On 18 March 2011 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
Third-party comments were received from the Equal
Rights Trust, a non-governmental organisation based in London, the United
Kingdom, which had been given leave by the President to intervene in the
procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of
Court). The Government replied to those comments (Rule 44 §
5).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1939 and lives in Lipcani.
A. Private violence against the applicant and her
complaints to the authorities
After
divorcing her husband more than twenty-two years prior to the relevant events,
the applicant was living in her own house next to that belonging to her former
husband, A.M. On 31 December 2009 A.M. broke into her house and beat her up. He
did the same on 19 February 2010, since which date he has remained in the
applicant’s house permanently, while the applicant has occasionally sought
refuge with her neighbours.
8. The applicant
obtained a medical report confirming that she had been beaten up on 19 February
2010. The applicant and her lawyer have made numerous complaints to the local
police, the prosecutor’s office and other authorities, asking for protection
for the applicant and for A.M. to be punished. The first such complaint was
made on 18 March 2010 and was addressed to the local police. She also complained
to other authorities that the local police had been aware of the situation but
had done nothing to protect her.
9. On 27 March 2010 the applicant
was again beaten up by A.M. On 30 March 2010 the local police informed her
that the events complained of had been confirmed, but that A.M. could not be
punished as he was mentally ill.
10. On 9 June 2010 the
Ocniţa police instituted criminal proceedings against
A.M. for breaking into the applicant’s house. According to the Government, on
24 June 2010 he was subjected to the preventive measure of an undertaking not
to leave town.
B. The initial court protection orders in the
applicant’s name
On 22
June 2010 a court adopted a protection order, deciding A.M.’s eviction and
ordering him to stay away from the applicant and her house. However, that order
was not enforced. On 17 July 2010 the applicant was again injured by A.M. in
the yard of her house, as confirmed by the police and a medical report. She
lodged a new complaint and on 23 July 2010 another court order was issued,
similar to that of 22 June 2010. This order was not enforced either.
On 16 August 2010 criminal proceedings were instituted against A.M.
for failure to abide by the protection order of 22 June 2010. This set of
proceedings was subsequently joined to the one instituted on 9 June 2010.
On 26 August 2010, during the criminal
proceedings, A.M. underwent a psychiatric examination. The medical commission
established that he was suffering from chronic paranoid schizophrenia and
recommended in-patient psychiatric treatment.
On 7 October 2010
a prosecutor submitted the case against A.M. to the court in order to determine
whether A.M. should undergo mandatory psychiatric treatment. In his decision
the prosecutor noted, inter alia, that A.M.’s medical history revealed
that in 1965 he had suffered a blow to his head; from 1981 he had started to
believe that his wife wanted to poison him and he had begun beating her; from
June to September 1987 he had been treated as an in-patient in a psychiatric
hospital and had been diagnosed with paranoid schizophrenia; he had been under
psychiatric supervision since 1988 and had undergone psychiatric treatment five
more times with the same diagnosis, the last treatment period having ending on
25 December 2004; and he had been monitored by the authorities as mentally
ill and dangerous to society. The parties did not inform the Court of the
outcome of the prosecutor’s request.
In a letter dated 6 December 2010 the Ministry of Labour, Social Protection
and Family stated that on 23 November 2010, Police Officers V.V. and R.P. from
the local police station and a social assistant had visited the applicant’s
house and talked with her and A.M. The latter had refused to leave the house or
to sign a document stating that he had been warned not to commit acts of
violence against the applicant.
C. The protection order
of 16 December 2010
On 5 December
2010 the applicant was again beaten up by A.M. On 16 December 2010 she obtained
a third court order, similar to the two already issued. The court noted, inter
alia, that on 5 December 2010 A.M. had again beaten the applicant up and
that the police had gone to her house the following day and had imposed an administrative
sanction on him for intentional destruction of property. On 24 December 2010
the applicant’s neighbour, E.C., gave a witness statement to the Ocniţa police officers. She described the many conflicts that
A.M. had had with the applicant and the neighbours, the many visits by the
police to the applicant’s house to warn A.M. not to commit acts of violence
towards the applicant, and the fact that the head of the local police had often
been in contact with her about the situation in the applicant’s house.
On 4 January 2011 the Ocniţa
District Court found A.M. guilty of breaking into the applicant’s house. Having
regard to the findings of the medical commission, the court absolved A.M. of
criminal responsibility because he had committed the crime in a state of
insanity. It also decided that A.M. should undergo mandatory psychiatric treatment.
On 14 January 2011 the applicant’s lawyer asked
for a copy of the decision of 4 January 2011, stating that she had not been
informed of the hearing. Moreover, her client had been unaware of it until the
morning of 4 January 2011, when she had been invited to attend court by
the local police. Therefore, the applicant’s procedural rights had been
breached. On the same day the lawyer asked the local police and the social
assistance service about the measures taken to enforce that court decision.
On 21
January 2011 the Ocniţa Police informed the applicant
that they did not have the power to evict anyone and that it was the bailiff’s
job to do so.
On 24 January 2011 Ocniţa
police officers escorted A.M. to a specialised psychiatric hospital for medical
treatment.
On 31 January 2011 the Ocniţa
prosecutor’s office decided not to start a criminal investigation against Ocniţa Police Officers V.V. and R.P. in
respect of an allegation by the applicant that they had been complicit in the private
violence committed by A.M.
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.”
The
relevant provisions of the Criminal Code read as follows:
Article 179. Break-in.
“(1) The unlawful entering or remaining in the
domicile or residence of a person without the latter’s consent or the refusal
to leave at that person’s request, as well as unlawful searches shall be
punished by a fine of up to 300 conventional units or by unpaid work for the
community during 100 to 200 hours, or a prison term of up to two years.”
Article 2011. Family violence.
“(1) Family violence, that is the intentional action
or inaction manifested physically or verbally, committed by a member of a
family against another member of that family, and which caused physical
suffering leading to light bodily harm or damage to health, or moral suffering,
or to pecuniary or non-pecuniary damage, shall be punished by unpaid work for
the community during 150 to 180 hours, or a prison term of up to two years.
(2) The same action:
(a) committed against two or more members of the
family;
(b) which caused moderate bodily harm or damage
to health
- shall be punished by unpaid work for the community during
180 to 240 hours, or a prison term of up to five years.
(3) The same action which:
(a) caused serious bodily harm or damage to
health;
(b) provoked the victim’s suicide or an attempt
thereof;
(c) caused the victim’s death
- shall be punished by a prison term of five to fifteen
years.”
Article 320. Non-enforcement of a court decision.
“(1) The intentional failure or avoidance from
enforcing a court decision, if it was committed after an administrative
sanction, shall be punished by a fine of 200 to 300 conventional units or by
unpaid work for the community during 150 to 200 hours, or with a prison term of
up to two years...”
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 concerning protection from domestic violence, including its
discriminatory nature against women, has been made in the case of Opuz v.
Turkey (no. 33401/02, §§ 72-86, ECHR 2009) 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 its General Recommendation No. 28 on the Core
Obligations of States Parties under Article 2 of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW/C/2010/47/GC.2),
the Committee on the Elimination of Discrimination against Women found that “States
parties have a due diligence obligation to prevent, investigate, prosecute and
punish ... acts of gender based violence”.
In her report
concerning the visit to Moldova from 4 to 11 July 2008 (document A/HRC/11/6/Add.4,
8 May 2009), the United Nations Special Rapporteur on violence against women,
its causes and consequences noted, inter alia:
“... patriarchal and discriminatory attitudes are increasing
women’s vulnerability to violence and abuse. In this context, domestic violence
in particular is widespread, largely condoned by society and does not receive
appropriate recognition among officials, society and women themselves, thus
resulting in insufficient protective infrastructure for victims of violence. ...
... 19. Moldovan women suffer from all forms of
violence. However, domestic violence and trafficking are major areas of
concern. The two are intimately connected and are linked to women’s overall
subordinate position in society. ...
20. While reliable data and a systematic registering
of cases on the nature and extent of the phenomenon is lacking, domestic
violence is said to be widespread. According to a Ministry of Labour, Social
Protection and Family report: “[...] At present, the frequency of domestic
violence, whose victims are women and children, is acquiring alarming
proportions. Unfortunately, it is very difficult for the State to control
domestic violence since in most of the cases it is reported only when there are
severe consequences of the violence, the other cases being considered just
family conflicts.
21. Despite this acknowledgement, unless it results
in serious injury, domestic violence is not perceived as a problem warranting
legal intervention. As a result, it is experienced in silence and receives
little recognition among officials, society and women themselves.
22. According to a survey conducted in 2005, 41 per
cent of women interviewed reported encountering some form of violence within
the family at least once during their lifetime. The survey revealed that
psychological violence, followed by physical violence, is the most widely
reported form of abuse in the family. Almost a third of the women interviewed
indicated having been subjected to multiple forms of violence. The study notes
that domestic violence runs across lines of class and education; however, women
with a higher level of education or economic status may tend not to disclose
incidents of violence. Sexual violence remains the least reported form of
violence. This may be due to lack of recognition of sexual abuse within the
family as a wrongdoing or the fear among victims that they will be held
responsible and become outcasts.
23. The perpetrators of violence against women are
often family members, overwhelmingly husbands or former husbands (73.4 per
cent), followed by fathers or stepfathers (13.7 per cent) and mothers or
stepmothers (7 per cent). Staff at the shelter in Chisinau indicated that
husbands of many of the women who seek help at the shelter are either police
officers or from the military, which makes it far more difficult for these
women to escape the violent environment and seek divorce. ...
29. There are also a number of widely held
misconceptions about violence against women which treat the problem as isolated
cases concerning a particular group. These misconceptions are: (a) violence
against women is a phenomenon that takes place in poor and broken homes; (b)
victims of violence are inherently vulnerable women needing special protection;
(c) violent men are deviants who use alcohol and drugs or have personality
disorders; (d) domestic violence involves all members of the household,
including men. It has been my experience that such misunderstandings often
result in misguided and partial solutions, such as rehabilitation programmes
for abusers, restrictions over women in order to protect them or gender neutral
solutions that overlook the causes of gender-based violence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the authorities
had tolerated the ill-treatment to which she had been subjected in her home,
and had failed to enforce binding court orders designed to offer her protection.
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 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 applicant
The applicant complained that the State had
failed to discharge their positive obligation under Article 3 of the Convention
to protect her from domestic violence and to prevent the reoccurrence of such
violence. She was a particularly vulnerable person given that, at the age of
72, twenty-two years after divorcing A.M., she had to endure his physical and
verbal attacks.
The applicant submitted that the authorities “had or ought to have had knowledge” of A.M.’s violence
against her (see Z. and Others v. the United Kingdom [GC], no.
29392/95, § 73, ECHR 2001-V). Her neighbour, E.C., had confirmed being in
frequent contact with the head of the local police in order to report any
instances of domestic violence by A.M. (see paragraph 16 above). However, the only effective measure to protect her from further violence had not been taken
until 24 January 2011, more than a year after her first complaint had been
made. Therefore, the authorities’ reaction had not been swift, despite the
urgency of the situation, and she had not been given immediate protection from
the risk of further violence.
The applicant further contended that the
respondent State had failed to ensure the timely enforcement of legislation
that it had enacted specifically to protect victims of domestic violence,
despite the repeated breach of protection orders by A.M. The Government had
continued to treat her case as a minor episode in which she had only herself to
blame for not making - or for withdrawing - criminal complaints or not
providing evidence. However, the nature of domestic violence was such that it
often went unreported; even when the crime was reported, the victim was
susceptible to intimidation by her aggressor and was less inclined to continue
pressing charges. Failure to take this into account and obliging the victim to
institute or continue criminal proceedings in order to enforce court orders
undermined the efficiency of the legislation designed to protect victims. The
applicant asserted that, accordingly, the respondent State had encouraged A.M.
to continue ill-treating her with impunity, while relying on his mental illness
as an excuse for not enforcing the various protection measures in her favour.
(b) The Government
The Government submitted that the authorities
had taken all reasonable measures to protect the applicant from the risk of
violence and to prevent such violence from reoccurring. In particular, the
domestic courts had issued protection orders and the police, together with the
social assistance authorities, had regularly visited the applicant’s house in
order to check A.M.’s behaviour and to caution him against attacking the
applicant. Two criminal investigations had been instituted against A.M. and a
number of administrative sanctions had been imposed, and eventually he had been
sent for mandatory medical treatment. The Government also referred to the
applicant’s failure to see a doctor after the alleged attack on 31 December
2009 (see paragraph 7 above) in order to obtain written confirmation of her
allegations, as well as to inconsistencies between the description of events in
her domestic complaints and that submitted to the Court. Similarly, the
applicant had failed to obtain medical evidence of her alleged beating on 27
March 2010. This had made it impossible for the Government to comment on the
allegations of violence before 22 June 2010.
As for the period after 22 June 2010, when a new
protection order had been issued, the authorities had again reacted promptly by
warning A. M. not to attack the applicant and by imposing a number of
restrictions on his contacts with her. The preventive measure of making him
undertake not to leave town had also been taken (see paragraph 10 above). Other measures could not be taken because of A.M.’s mental illness.
The present case was different from Opuz,
cited above, in that the level of violence and of any threats made in the
present case had clearly been less serious than in Opuz and the
authorities’ reaction had been prompt in the present case.
2. The Court’s assessment
(a) General principles
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).
43. 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 applicant was subjected to treatment
contrary to Article 3 of the Convention
In the present case the Court notes that on two
occasions the applicant obtained medical evidence of having been beaten up by
A.M. (see paragraphs 8 and 11 above). Moreover, even though it appears that the
applicant did not obtain any further medical evidence, both the local police
and the courts established that A.M. had attacked her on other occasions (see
paragraphs 9 and 16 above).
Moreover, the fear of further beatings by A.M.,
following those of 19 February, 27 March, 17 July and 5 December 2010
(see paragraphs 8, 9, 11 and 16 above), was sufficiently serious to cause the
applicant suffering and anxiety amounting to inhuman treatment within the
meaning of Article 3 of the Convention.
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
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 39-43 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 (former) members of one’s own family (see
paragraphs 23 and 24 above). Moreover, the law provided for protective measures
for the victims of violence, as well as for sanctions against those persons who
refused to abide by court decisions (see paragraphs 22 and 23 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 various documents in the file that the authorities were well
aware of A.M.’s long history of mental health problems. Indeed, he was
supervised by a psychiatrist and was considered dangerous to society. He was
also known to have particularly strong negative feelings towards his former
wife, the applicant, suspecting that she wanted to poison him (see, for
instance, paragraph 14 above). While these facts do not automatically attest to
any immediate danger for the applicant, the risk to her physical well-being
became very clear when A.M. broke into her house and beat her up, a
circumstance of which the authorities were fully aware (see paragraphs 8 et seq. above). It is therefore necessary to determine whether the actions taken by
them to protect the applicant were sufficient to satisfy their positive
obligations under Article 3.
51. The Court notes that the
applicant was a single woman aged 72 at the relevant time. As such, she was
particularly vulnerable to attacks by A.M., who had a long history of violent
behaviour against her (see paragraph 14 above). He had entered her house
without permission and stayed there for more than a year, so he had had the
possibility to ill-treat her at any time and the applicant had had to find
refuge with the neighbours. It considers that that risk to the applicant’s
physical and psychological well-being was imminent and serious enough as to
require the authorities to act swiftly. The national authorities could have
charged A.M. with at least three different criminal offences as early as
December 2009: bodily harm and threat of such harm (Articles 152 and 155 of the
Criminal Code), given that A.M. was no longer a member of the applicant’s
family and that, accordingly, Article 2011 of the Criminal Code did
not apply, break-in (Article 179 of the Criminal Code) and failure to abide by
a court decision (Article 320 of the Criminal Code), all cited in paragraphs 23 and 24 above. This would have allowed the courts to take resolute action, either
by way of criminal sanctions or, as it eventually happened, by formally finding
that A. M. was mentally ill and by ordering his mandatory psychiatric
treatment.
However, their actions have been ineffective,
allowing A.M. to stay in the applicant’s house for more than a year after her
complaint had been made. While the authorities eventually lodged criminal
prosecutions, it took them approximately six months to initiate the proceedings
concerning the break-in (see paragraph 10 above) and eight months to initiate
the proceedings concerning the failure to abide by the protection order in
favour of the applicant (see paragraph 12 above). No criminal proceedings were started in respect of the violence as such.
Moreover, A.M.’s refusal to abide by the
protection order was so clear and persistent that the courts had to adopt two
more such orders. Despite the above, the authorities still did not remove A.M.
from the applicant’s house, the local police informing the applicant on 21
January 2011 that they had no power to remove anyone (see paragraph 19 above). Only on 24 January 2011 was A.M. finally removed by the Ocniţa
police.
It is true that A.M. was eventually recognised
as a mentally ill person. However, the courts could have ordered his mandatory
treatment much earlier had the criminal proceedings started sooner (see
paragraph 51 above). There is no acceptable explanation in the case file or in
the Government’s observations for the delay of more than a year for doing so.
The Court
concludes that the manner in which the authorities had handled the case,
notably the long and unexplained delays in enforcing the court protection
orders and in subjecting A.M. to mandatory medical treatment, amounted to a
failure to comply with their positive obligations under Article 3 of the
Convention. There has, accordingly, been a violation of that provision in the
present case.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION READ IN CONJUNCTION WITH ARTICLES 3 AND 8 OF THE CONVENTION
The applicant also complained under Article 14
of the Convention in conjunction with Articles 3 and 8, that the authorities
had failed to apply the domestic legislation intended to afford protection from
domestic violence, as a result of preconceived ideas concerning the role of
women in the family. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
A. Admissibility
The Court notes that 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
The applicant claimed that the authorities had
failed to take appropriate action aimed at preventing domestic violence,
protecting from its effects, investigating the complaints and punishing the
perpetrator. They thus promoted further violence from A.M., who felt immune to
any State action. The violence was gender-based and amounted to discrimination
contrary to Article 14 of the Convention.
The Government argued that there had been no
discriminatory treatment in the present case. Unlike in the case of Opuz,
cited above, the authorities had not been inert to the applicant’s complaints
and had taken all reasonable action to prevent her ill-treatment, having
started criminal proceedings against A.M. and eventually sending him for
mandatory medical treatment. Even if some shortcomings in the practical
implementation of the law against domestic violence could still be found, this
was due to the relative novelty of that law, dating from 2007.
The Equal Rights Trust submitted that there was
well-established evidence that domestic violence impacted disproportionately
and differently upon women. If it was to be effectively tackled, such violence
demanded a particular response, which included treating such violence as a form
of gender-based discrimination. Failing to realise this amounted to a failure
to acknowledge the magnitude of the problem and its impact upon the dignity of
women. They referred to the General Recommendation No. 28 on the Core
Obligations of States Parties under Article 2 of the Convention on the
Elimination of All Forms of Discrimination against Women of the Committee on
the Elimination of Discrimination against Women (CEDAW/C/2010/47/GC.2), in
accordance with which “States parties have a due diligence obligation to
prevent, investigate, prosecute and punish such acts of gender based violence”.
The Court recalls that it has already found the
State’s failure to protect women against domestic violence breaches their right
to equal protection of the law and that this failure does not need to be
intentional (see Opuz, cited above, § 191).
In the present case, the Court refers to its
findings (see paragraphs 8, 9, 14, 16 and 51 above) that the applicant was subjected to violence from A.M. on a number of occasions and that the authorities
were well aware of that. It observes that A. M. was allowed to live in the
applicant’s house for more than a year, that three protection orders had to be
taken by a court and that they were not enforced during all that time. Moreover,
during that time A.M. openly opposed the local police and social workers (see
paragraph 15 above), refusing to acknowledge in writing having been warned not
to harm the applicant and repeating his violent acts against her. Despite
several legal provisions allowing the authorities to initiate criminal proceedings
against A.M. and thus to subject him to a psychiatric examination with a view
to deciding on the need to order his compulsory psychiatric treatment, it took
the authorities almost a year to do so.
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 applicant, but
amounted to repeatedly 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 30 above) only support the impression that the authorities do not
fully appreciate the seriousness and extent of the problem of domestic violence
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.
The Court considers that the complaint under
Article 14 taken in conjunction with Article 8 does not raise any separate
issues. It will, therefore, not examine this complaint separately.
III. ALLEGED VIOLATION OF ARTICLE 17 OF THE
CONVENTION
The applicant complained under Article 17 of the
Convention that the authorities’ failure to curb A.M.’s violent behaviour on
account of his mental illness allowed him to breach her rights with impunity,
effectively destroying her Convention rights. Article 17 reads as follows:
“Nothing in [the] Convention may be interpreted as implying for
any state, group or person any right to engage in any activity or perform any
act aimed at the destruction of any of the rights and freedoms set forth herein
or at their limitation to a greater extent than is provided for in the
Convention.”
Having examined the materials in the case file,
the Court considers that this complaint is unsubstantiated. It follows that
this part of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
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 applicant claimed 20,000 euros (EUR) in
damages for the suffering caused to her by her systematic humiliation and
beatings, and by the authorities’ failure to promptly offer her protection by
enforcing the protection orders.
The Government argued that the amount claimed
was unjustified and also excessive in the light of the Court’s previous rulings
on Article 3 in similar cases. They invited the Court to reject her claims.
Having regard to the seriousness of the
violation 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 applicant EUR 15,000.
B. Costs and expenses
The applicant claimed EUR 7,500 and 20,686.25
Moldovan lei (approximately EUR 1,300) for legal costs. She submitted an
itemised list of hours which her lawyer had spent working on her case (61.75
hours at the rate of MDL 335 at the domestic level and 50 hours at an hourly
rate of EUR 150 before the Court).
The Government considered excessive both the
number of hours worked on the case and the rates charged by the lawyer. They
noted that in Boicenco v. Moldova (no. 41088/05, § 176, 11 July 2006),
the Court had accepted as reasonable a rate of EUR 75 per hour, in view of the
complexity of the case and the extensive input by the lawyers. The present case
was not as complex.
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 and the above criteria and to the fact that the applicant has
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 admissible the complaints under
Articles 3 and 14 read in conjunction with Articles 3 and 8 of the Convention,
and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of Article
14 read in conjunction with Article 3 of the Convention;
4. Holds that there is no need to examine
separately the complaint under Article 14 read in
conjunction with Article 8 of the Convention;
5. Holds
(a) that the respondent State is to pay the
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 2,150 (two thousand one hundred and fifty 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 applicant’s
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
