CASE OF BĂLȘAN v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1957 and lives in Petroşani. 6. She married N.C. in 1979 and they had four children, born in 1980, 1988, 1992 and 1999. According to the applicant, N.C. was violent towards her and their children on numerous occasions throughout their marriage. In 2007, assaults against the applicant intensified during their divorce proceedings. The divorce was finalised on 6 December 2008. 7. On 24 June and 3 September 2007 the applicant was physically assaulted and threatened by her husband. 8. According to a forensic medical certificate issued on 28 June 2007, the applicant had numerous bruises on her face, arms, back and thorax, which required five to six days of medical care. A second forensic medical certificate, issued on 6 September 2007, stated that the applicant had an excoriation (scratches) on her ear lobe and several bruises on her arm and thighs. It was possible the injuries had been caused on 3 September. They required two to three days of medical care. 9. On 8 September 2007 the applicant was again physically assaulted by her husband. After the arrival of the police, she was taken to hospital by ambulance. She was diagnosed with an open facial trauma and a contusion of the nasal pyramid. According to a forensic medical certificate issued on 13 September 2007, the injuries might have been caused by impact with or on a hard object and required nine to ten days of medical care. 10. In their duty reports for the above dates, the police officers called by the applicant noted that she had been injured in a domestic dispute and that they had informed her that she could lodge formal complaints against N.C. In the report drafted on 24 June 2007, the police officer on duty also mentioned that when he had arrived at the scene of the incident he had found that N.C. had locked the applicant out of their joint residence. 11. On 3 August and 2 October 2007 the applicant lodged complaints with the prosecutor’s office attached to the Petroşani District Court, alleging that she had been physically assaulted by her husband in their home, in the presence of their children, on 24 June, and 3 and 8 September 2007. She attached copies of the medical certificates drawn up after the incidents. 12. On 28 August 2007 the applicant also sent a letter to the Hunedoara County police chief, in which she alleged that she had been the victim of repeated acts of violence by her husband, who often assaulted her in the presence of their children. She mentioned that on several occasions he had locked her out of their home and asked for help from the police in solving these problems. 13. On 11 September 2007 the applicant gave a detailed statement describing the three assaults to the policeman in charge with the investigation. She stated that on 24 June 2007 her husband had come home around noon and had started punching her in the face and head and threatened to kill her. She had managed to flee, but when she had returned an hour later her husband had refused to let her back into the apartment. She also mentioned that he had told the children not to speak about it. 14. In statements dated 12 September 2007, the applicant’s mother and brother told the police that throughout 2007 the applicant had very often come to their house, complaining that N.C. had beaten her, threatened to kill her or that he had locked her out of their apartment. 15. On 15 November 2007 the applicant’s and N.C.’s adult daughters, C.B.A. and C.C.A., told the police that the applicant used to drink and that she became aggressive when she got drunk. They also stated that their father had not hit their mother. C.C.A. mentioned that although she earned her own living, her father had always given her money. Her mother, on the other, had constantly been short of money and had debts to banks. 16. On 19 November 2007 N.C. was questioned by the police. He stated that he had argued with the applicant over their divorce, but had not laid a hand on her. He added that the applicant had not been cleaning the house properly and had a drinking problem. He also stated that “I did not hit her so hard as to cause her injury” and that “she may have fallen in the bathroom”. He alleged that the medical certificates submitted by the applicant had been forged. 17. On 13 and 19 December 2007 the applicant wrote to the head prosecutor of the prosecutor’s office attached to the Petroşani District Court, complaining that N.C., who had moved out of their apartment and had taken two of the children with him, had threatened to kill her when they had accidentally met on the street a week before. She stated that she feared for her life and asked for the proceedings to be speeded up and for protection from N.C. 18. On the same date, the prosecutor’s office attached to the Petroşani District Court decided not to press criminal charges against N.C. and imposed an administrative fine of 200 Romanian lei (RON) (approximately 50 euros (EUR)) on him. The prosecutor held that the applicant had provoked the disputes after drinking alcohol and referred to N.C.’s statements and those of the applicant’s two adult daughters. As regards the alleged threats, it was considered that the applicant had failed to prove her accusations. 19. The prosecutor concluded that, although N.C. had committed the crime of bodily harm, his actions had not created any danger to society, because he had been provoked by the victim, had no previous criminal record and was a retired person (pensionar). 20. The applicant’s complaint against that decision was rejected as illfounded on 25 March 2008 by the superior prosecutor. 21. On 21 April 2008 the applicant lodged a complaint against the prosecutors’ decisions of 19 December 2007 and 25 March 2008 with the Petroşani District Court, asking that N.C. be charged with bodily harm, be convicted and ordered to pay non-pecuniary damages for the suffering she had endured. She alleged that the administrative fine, which N.C. had refused to pay, had not had a deterrent effect on him as he had continued to assault her after the prosecutor’s decision of 19 December 2007. She also asked the court to impose criminal sanctions on him and requested permission to submit a recording of a conversation with N.C. in order to prove that she had been assaulted and threatened by him in September 2007. In the last paragraph of her submission, the applicant stated that she feared for her life and asked the court to “punish [N.C.] as provided for by law ... to forbid him from entering the apartment ... and to forbid him from coming near [her] ...”. 22. At the second hearing before the Petrosani District Court, the applicant applied to be given a court-appointed lawyer because she did not have the financial means to hire one. The court dismissed the application, holding that the subject matter of the case did not require representation by a lawyer. 23. By an interlocutory judgment of 23 June 2008, the Petrosani District Court decided to partially quash the prosecutor’s decision of 19 December 2007 in respect of the crime of bodily harm and the penalty imposed for it and to examine that part of the case on the merits. The prosecutor’s findings in respect of the threats were upheld. The recording was not admitted as evidence because the court considered that it had no relevance to the case. 24. The applicant and N.C. gave statements before the court. N.C. explained that on 8 September 2007 the applicant had been drunk and had threatened him with a knife. In order to defend himself, he had pushed her but he denied having ever hit the applicant. 25. On 10 February 2009 the court heard a statement from the applicant’s daughter, C.B.A., who testified as follows: “My father used to hit my mother [the applicant] and us, the children, many times. He used to do it when he had not come home at night and my mother asked him where he had been. Then he would get angry and hit her. The main reason he got angry was lack of money ... Even after July 2007, when I moved out of my parents’ apartment, my mother continued to be hit by my father; I saw some of these incidents personally. Before 2007, my mother used to drink alcohol, but it was within normal limits, and in 2007 she stopped drinking. I retract the statement I gave during the criminal proceedings because I gave it after threats from my father.” 26. On 17 February 2009 the Petroşani District Court decided to acquit N.C. of the crime of bodily harm. The court considered that C.B.A.’s statement could not be taken into consideration, without mentioning any reasons for that decision. The court concluded as follows: “The injured party [the applicant] has not proved her allegations that on 24.06.2007, 3.09.2007 and 8.09.2007 ... she was physically assaulted by the defendant. The court considers, also in view of the evidence collected during the criminal investigation, that such assaults by the defendant took place principally because of the injured party’s alcohol consumption and because she was not taking adequate care of her four children. The defendant’s acts are not so dangerous to society as to be considered crimes and he shall therefore be acquitted of the three counts of bodily harm and shall pay an administrative fine of RON 500.” 27. The court further dismissed the applicant’s claims for damages as ill-founded, without giving reasons. No mention was made in the judgment of the applicant’s request for protective measures made in her complaint of 21 April 2008 (see paragraph 21 above). 28. The applicant lodged an appeal on points of law (recurs) against that judgment. She alleged, among other arguments, that N.C. was a violent person who continued to assault her, even after being punished with an administrative fine by the prosecutor on 19 December 2007. 29. On 12 May 2009 the Hunedoara County Court dismissed as illfounded the applicant’s appeal on points of law and upheld the decision of 17 February 2009. The court held that the acts of violence committed by N.C. had been provoked by the applicant and had therefore not reached the level of severity required for them to fall within the scope of the crime of bodily harm. For the same reason, an award for damages was not justified. 30. Between 19 February and 21 April 2008 the applicant made five complaints to the Petroşani police concerning new incidents of assault or threats by N.C. to which she attached medical reports. 31. In the meantime, on 27 March 2008, the applicant asked the Hunedoara County police to apply the measures provided by law in order to stop the constant assaults she was being subjected to by N.C. She stressed that she felt that her life was in danger. A similar request was sent by the applicant to the police on 11 April 2008. 32. On 29 September 2008 the prosecutor’s office attached to the Petroşani District Court decided not to press charges against N.C. for the five incidents described by the applicant. He was however punished with an administrative fine of RON 100 (approximately EUR 25). 33. The applicant’s letter of 27 March 2008, requesting the police to take the necessary measures in order to stop the constant assaults against her, was not taken into consideration. The prosecutor found that it could not be considered a formal complaint because, unlike the other complaints, it did not refer to a specific assault. 34. The applicant did not lodge any further complaints against the above-mentioned decision.