CASE OF EREMIA v. THE REPUBLIC OF MOLDOVA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Positive obligations);Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
6. The applicants were born in 1973, 1995 and 1997 respectively and live in Vălcineț. 7. The first applicant was married to A., a police officer based at the Călăraşi police station. The second and third applicants are their daughters. According to the first applicant, following the birth of the second daughter A. would often come home drunk and assault her, sometimes in the presence of their daughters. On 2 July 2010 the first applicant petitioned for divorce, having been assaulted by A. the day before and having witnessed him verbally abuse their teenage daughters. A. subsequently became more violent, regularly assaulting the first applicant and insulting both her and their daughters. 8. On 30 August 2010 the first applicant contacted the local police to report that she had been punched in the head by A. that day. On 18 September 2010 A. was fined by an administrative court the sum of 200 Moldovan lei (MDL, then worth approximately 12.40 euros (EUR)). On 30 September 2010 he was given a formal warning by the authority in charge of the police, the Ministry of Internal Affairs, to stop his violent behaviour. 9. On 5 November 2010 A. came home drunk and assaulted the first applicant. On 6 November 2010 she reported the incident to the local prosecutor’s office. 10. According to the applicants, on 11 November 2010 A. again assaulted the first applicant in the presence of their daughters. He did the same on 12 November 2010, this time almost suffocating the first applicant, following which she lost her voice for a day and a half. On an unknown date the deputy head of the Călăraşi police station invited the applicant to undergo an examination by a forensic physician in order to establish the extent and nature of injuries to her body. The examination took place on 23 November 2010 but no such injuries were found. 11. On 29 November 2010 the applicants applied to the Călăraşi District Court for a protection order. A protection order was made on 9 December 2010, the judge finding that A. had been abusive towards the first applicant by beating her, insulting her, imposing his will upon her, causing her stress and psychological suffering, threatening her and mistreating their pet. Moreover, this violence had often taken place in the presence of their teenage daughters, whose psychological well-being was being adversely affected as a result. A. was ordered to stay away from the house for ninety days and an exclusion zone of 500 m was attached to the order, prohibiting A. from contacting the applicants or committing any acts of violence against them. The applicants notified the local police, prosecutor’s office and social services of the order, which on 12 December 2010 was served on A. 12. On 9 December 2010 the first applicant requested that Judge B.N. from the Călăraşi District Court revoke the six-month waiting period he had insisted the parties observe when the first applicant petitioned for divorce. She based her application on the protection order made that day and submitted that A.’s history of violence prevented any possibility of reconciliation. The first applicant alleged that she was informed by Judge B.N.’s secretary that the judge had refused to treat her divorce as an urgent case. On 12 January 2011 the first applicant complained to the President of the Călăraşi District Court about the judge’s refusal. 13. On 10 December 2010 Călăraşi police opened a case against A. to oversee enforcement of the protection order of 9 December 2010. Between 12 December 2010 and 17 January 2011 the local police visited A. on six occasions to warn him against alcohol abuse, bringing shame upon his family, insulting his relatives and breaching the protection order. 14. On 14 December 2010 A. was cautioned by local police for his violent behaviour and was made to confirm in writing that he had understood the terms of the protection order. It was established that A. had moved out of the family home and was in temporary local authority housing. 15. On 16 December 2010 A. saw the first applicant in the street and followed her, using insulting and threatening language and trying to apprehend her. He continued to harass her in a shop where she had tried to seek refuge. 16. On 19 December 2010, A. entered the family home notwithstanding the terms of the protection order. According to the Government, however, the applicants had given their permission for him to return until 16 January 2011. The applicants maintained that they had not given such permission, A. having assaulted the first applicant, destroyed certain possessions and verbally abused the third applicant on his return. On 23 December 2010 the first applicant reported the incidents of 16 and 19 December 2010 to the police. Most of the complaints to various authorities were then forwarded to the Călăraşi Prosecutor’s Office. 17. On 10 January 2011 the first applicant was invited to give statements at Călăraşi police station regarding her complaints against A. She submitted that she was then pressured by the police into withdrawing her criminal complaint, because if A. had a criminal record and lost his job, this would have a negative impact on their daughters’ educational and career prospects. A meeting with the local prosecutor was fixed for the following day, this time with A. being present. During that meeting the first applicant told the prosecutor that she wanted a divorce but did not want to cause any trouble for her husband. 18. On 12 January 2011 the first applicant was informed that the prosecutor would not be initiating a criminal investigation. On 13 January 2011 A. returned to the family home. He again assaulted and verbally abused the first applicant, simulating strangling her, and threatened to kill both her and her aunt if she did not withdraw her criminal complaint. On 14 January 2011 a medical expert found four haematomas on the first applicant’s neck and one on her clavicle, which could have been sustained in the way the first applicant had described. 19. The Government alleged that on 1 March 2011 A. telephoned the third applicant to wish her a happy birthday. They further submitted that having obtained permission from the first applicant, A. returned to the home to congratulate his daughter in person, spending twenty minutes there in the presence of all three applicants and his father-in-law. 20. The first applicant reported the incident to the Călăraşi District Court on 2 March 2011, informing it that she had rejected a request by A. to visit the family home the day before, but that he had turned up nonetheless, in clear breach of the protection order. She asked the court to extend the duration of the order for a further ninety days. On 14 March 2011 A. was called before the court and served with an extension of the order. 21. On 15 March 2011 the Călăraşi Social Assistance and Family Protection Department informed the first applicant that owing to a clerical error the protection order of 9 December 2010 had never been enforced by the local social services. 22. On 14 April 2011 the Chișinău Court of Appeal upheld A.’s appeal, partly revoking the protection order of 9 December 2010. The appellate court found that the law neither expressly provided for the minimum exclusion zone of 500 m, nor did it expressly prohibit the abuser from harassing or using physical violence against the victim, although these were implied in the general obligation not to make contact. The appellate court therefore decided to remove these terms from the order. 23. On 13 December 2010 the first applicant requested that a criminal investigation be initiated into A.’s acts of violence. On the same day the applicants requested that the second and third applicants be officially recognised as victims of domestic violence for the purposes of the investigation. 24. On 17 January 2011 the applicants’ lawyer complained to the Prosecutor General’s Office that she had not been invited to the meeting on 11 January 2011 at the Călăraşi Prosecutor’s Office (see paragraph 17 above) at which the first applicant had been pressured into withdrawing her criminal complaint in A.’s presence. Also on 17 January 2011 a criminal investigation was finally initiated in respect of A. On 25 January 2011 the applicants again requested that the prosecutor’s office officially recognise the second and third applicants as victims of domestic violence for the purposes of the investigation. 25. On 19 January 2011 the first applicant was invited to a meeting with social workers, who allegedly advised her to attempt reconciliation with A. since she was “neither the first nor the last woman to be beaten up by her husband”. On 20 January 2011 the applicants complained to the Ministry of Labour, Social Protection and Family about the social workers’ attitude. 26. On 17 February 2011 the applicants asked the Călăraşi police to fine A. for breaching the protection order on 16 December 2010, 20 and 22 January and 6 February 2011, her main reason being that A. had contacted the first applicant and pressured her into withdrawing her criminal complaint. In response she was informed that on 24 February 2011 the administrative case file against A. had been sent to the Călăraşi District Court. 27. On 1 April 2011 a prosecutor from the Călăraşi Prosecutor’s Office established that A. had admitted earlier that day to having physically and psychologically abused three members of his family. A. then concluded a plea bargain with the prosecutor asking to be conditionally released from criminal liability. The prosecutor found that there was substantive evidence of A.’s guilt in the form of various medical reports, witness statements, documents relating to his fine and warnings issued by his employer, the Ministry of Internal Affairs. However, given that he had committed a “less serious offence”, did not abuse drugs or alcohol, had three minors to support, was well respected at work and in the community and “did not represent a danger to society”, the prosecutor suspended the investigation for one year subject to the condition that the investigation would be reopened should A. commit another offence during that time. 28. On 13 April 2011 the applicants appealed against the prosecutor’s decision of 1 April 2011. On 18 April 2011 the senior prosecutor rejected that appeal on the grounds that suspending the investigation against A. would afford better protection to the applicants. “A criminal investigation may be conditionally suspended, with subsequent release from criminal liability, in respect of a person accused of having committed a less serious offence who admits his or her guilt and does not represent a danger to society, if the rehabilitation of that person is possible without criminal punishment.” “(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.” “(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...” 30. 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: “(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.” 31. Article 2 of the Law on the Police (no. 416, republished on 31 January 2002) provides that the main tasks of the police include, inter alia, the protection of the life, the rights and dignity of others, prevention of crime and protection of public order. Under Article 21 (8) of the same law, a police officer could be dismissed for committing offences discrediting the police. 32. 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). 33. 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. 34. 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. 35. 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. 36. 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”. 37. 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.”