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You are here: BAILII >> Databases >> European Court of Human Rights >> BUSUIOC v. THE REPUBLIC OF MOLDOVA - 61382/09 - Chamber Judgment [2013] ECHR 684 (16 July 2013) URL: https://www.bailii.org/eu/cases/ECHR/2013/684.html Cite as: [2013] ECHR 684 |
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THIRD SECTION
CASE OF BUSUIOC
v
.
THE REPUBLIC OF
MOLDOVA
(Application no. 61382/09)
JUDGMENT
STRASBOURG
16 July 2013
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Busuioc
v
. the Republic of
Moldova
,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Corneliu
B
îrsan,
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
Moldova
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by three Moldovan nationals, Ms Olga Busuioc, Mr Victor
Busuioc and Mr Ion Busuioc (“the applicants”), on 19 November 2009.
V
. Grosu.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The background of the case
V
.
B
.). As a result, on 16
January 2007 the first applicant divorced
V
.
B
., but they continued living in
the same apartment.
V
.
B
. had beaten her.
V
.
B
. In the four other cases the courts fined
V
.
B
. for
beating and insulting her, although in one of them the court noted that the
first applicant had provoked him. The fines imposed ranged from 140 to 300
Moldovan lei (MDL, the equivalent of, respectively, 8.65 to 18 euros (EUR) at
the relevant time).
V
.
B
. paid all those fines. It appears from the parties’
statements that on an unknown date the prosecution initiated criminal proceedings
against
V
.
B
. for attempted rape, but on 14 May 2008 the applicant withdrew her
complaint and the proceedings were discontinued.
V
.
B
. has been registered for supervision by that office
as a “family trouble-maker” since 2007.
B
. The court proceedings initiated by the first
applicant
V
.
B
.
seeking his eviction from the apartment. She relied on the evidence of
V
.
B
.’s
violent behaviour.
V
.
B
. lodged a counterclaim, asking for the rooms in the
apartment to be divided between himself and the rest of his former family.
V
.
B
. The court found that
V
.
B
.
had been violent towards the first applicant and had insulted her in front of
their children, as evidenced by the medical reports and court decisions.
V
.
B
. The
court found that the lower courts had erroneously concluded that
V
.
B
. had
systematically abused the first applicant. It noted that one of the court
proceedings in which
V
.
B
. had been accused of beating the first applicant had
been discontinued after the parties’ settlement of the case, while another had
been discontinued because of the expiry of the time-limit for imposing a fine.
In one of the remaining four decisions it had been mentioned that the applicant
herself had provoked
V
.
B
.’s violence. The other three decisions were
insufficient to prove systematic violent behaviour. Moreover, it had not been
proved that
V
.
B
. suffered from alcohol or drug dependency. According to a
certificate from the local apartment owners’ association,
V
.
B
. had not been
known for causing trouble. In addition,
V
.
B
. had proposed to the first
applicant that they privatise the apartment and sell it so that they could buy
separate apartments, but the first applicant had refused. The court also found
that the parties could continue living in their apartment and that
V
.
B
. could
take one of the rooms, leaving the two other rooms to the applicants. There
would be no change to the common areas. The judgment was final.
C. Events after the judgment of the Supreme Court of Justice
V
.
B
. continued behaving violently
towards her. On 19 August 2010 he was fined administratively in the amount of
MDL 400 (EUR 25.5 at the time) for insulting the first applicant. On the second
occasion, after communication of the present application to the respondent
Government,
V
.
B
. was fined MDL 200 (EUR 12.2) on 29 August 2011 for
violence against the first applicant. According to a medical report made on 23
August 2011, the first applicant declared that
V
.
B
. had tried to rape her in
the evening of 21 August 2011, but had not succeeded because of her
resistance. The doctor found injuries on her body, caused by “blunt objects with
a limited surface”, as follows: oval haematomas measuring 1.5 x 1 cm and 4 x 3cm
on various parts of her arms, the lower part of her left thigh and the middle part
of her right thigh, as well as on various parts of both legs.
V
.
B
.’s
temporary eviction from the common apartment, without deciding on the ownership
of any assets;
V
.
B
.’s obligation not to come closer than 200 metres to her or her
children and not to contact any of them, as well as not to visit the place of
work or study of any of the applicants.
V
.
B
.’s temporary eviction from the apartment.
It found that he had acted violently against the first applicant, but that “it
had not been established that [
V
.
B
.] had applied physical and/or psychological
violence to [the second and third applicants]”. At the same time,
V
.
B
. had no
alternative accommodation and in addition his right to use a part of the
disputed apartment had been confirmed by a final judgment of the Supreme Court
of Justice of 20 May 2009 (see paragraph 14 above). According to the
Government, this order was brought to the attention of the local police and
V
.
B
.’s behaviour was subsequently monitored.
V
.
B
.’s right to live in
the apartment with her the authorities had effectively put her at risk of
further ill-treatment. Also, without his removal from the apartment at least
temporarily the court’s protection order, in the part concerning
V
.
B
.’s staying
at least 200 metres away from her, was deprived of any meaning and did not
prevent any further ill-treatment or protect her against inhuman and degrading
treatment caused by a private individual, despite a positive obligation to do so
under the Convention. She added that according to a letter from the Social
Assistance department of Chişinău Municipal Council, the apartment in
which the first applicant and
V
.
B
. lived was composed of three rooms, two of
which were suitable for living in, but only one was connected to the heating
system.
II. RELEVANT NATIONAL AND INTERNATIONAL MATERIALS
Section 15: Protective measures
“(1) The courts shall, within twenty-four hours of receipt of the claim, issue a protection order to assist the victim, by applying the following measures to the aggressor:
(a) an order to temporarily leave the common residence or to stay away from the victim’s residence, without making any determination as to the ownership of jointly owned assets;
(
b
) an order to stay away from the victim;
(c) a prohibition on contacting the victim, his or her children or other dependants;
(d) an order not to visit the victim’s place of work or residence;
(e) an order to pay maintenance for his or her children pending resolution of the case;
(f) an order to cover the costs incurred and to compensate for any damage caused as a result of his or her violent acts, including medical expenses and the cost of replacing or repairing any destroyed or damaged possessions;
(g) restrictions on the unilateral disposal of jointly owned assets;
(h) an order to undergo special treatment or counselling if the court determines that this is necessary to reduce or eliminate violence;
(i) an interim contact order for the aggressor to see his or her children below the age of majority;
(j) a prohibition on possessing and carrying weapons ...
(3) The protective measures set out in subsection (1) above shall be applied for up to three months and may be discontinued upon the elimination of the threat or danger which caused the adoption of such measures and extended if a further claim is submitted or if the conditions set out in the protection order have not been complied with.”
22. Article 102 of the Housing Code (in force since 3 July 1983) reads as follows:
Article 102. Eviction without allocating another dwelling.
“If the tenant, members of his or her family, or others living with them ... systematically break the ... rules of living together, making it impossible for the others to live together with them in the same apartment or house, and if the measures of prevention and public influence did not bring any result, at the request of ... interested persons those responsible shall be evicted, without allocating them another dwelling. ...”
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.”
B
. Relevant international material
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).
Moldova
from
4 to 11 July 2008 (document A/HRC/11/6/Add.4, 8 May 2009), the United Nations
Special Rapporteur on violence against women, its causes and consequences
noted, inter alia:
“... patriarchal and discriminatory attitudes are increasing women’s vulnerability to violence and abuse. In this context, domestic violence in particular is widespread, largely condoned by society and does not receive appropriate recognition among officials, society and women themselves, thus resulting in insufficient protective infrastructure for victims of violence. ...
... 19. Moldovan women suffer from all forms of violence. However, domestic violence and trafficking are major areas of concern. The two are intimately connected and are linked to women’s overall subordinate position in society. ...
20. While reliable data and a systematic registering of cases on the nature and extent of the phenomenon is lacking, domestic violence is said to be widespread. According to a Ministry of Labour, Social Protection and Family report: “[...] At present, the frequency of domestic violence, whose victims are women and children, is acquiring alarming proportions. Unfortunately, it is very difficult for the State to control domestic violence since in most of the cases it is reported only when there are severe consequences of the violence, the other cases being considered just family conflicts.
21. Despite this acknowledgement, unless it results in serious injury, domestic violence is not perceived as a problem warranting legal intervention. As a result, it is experienced in silence and receives little recognition among officials, society and women themselves.
22. According to a survey conducted in 2005, 41 per cent of women interviewed reported encountering some form of violence within the family at least once during their lifetime. The survey revealed that psychological violence, followed by physical violence, is the most widely reported form of abuse in the family. Almost a third of the women interviewed indicated having been subjected to multiple forms of violence. The study notes that domestic violence runs across lines of class and education; however, women with a higher level of education or economic status may tend not to disclose incidents of violence. Sexual violence remains the least reported form of violence. This may be due to lack of recognition of sexual abuse within the family as a wrongdoing or the fear among victims that they will be held responsible and become outcasts.
23. The perpetrators of violence against women are often family members, overwhelmingly husbands or former husbands (73.4 per cent), followed by fathers or stepfathers (13.7 per cent) and mothers or stepmothers (7 per cent). Staff at the shelter in Chisinau indicated that husbands of many of the women who seek help at the shelter are either police officers or from the military, which makes it far more difficult for these women to escape the violent environment and seek divorce. ...
There are also a number of widely held misconceptions about
violence against women which treat the problem as isolated cases concerning a
particular group. These misconceptions are: (a) violence against women is a
phenomenon that takes place in poor and broken homes; (
b
) victims of violence
are inherently vulnerable women needing special protection; (c) violent men are
deviants who use alcohol and drugs or have personality disorders; (d) domestic
violence involves all members of the household, including men. It has been my
experience that such misunderstandings often result in misguided and partial
solutions, such as rehabilitation programmes for abusers, restrictions over
women in order to protect them or gender neutral solutions that overlook the
causes of gender-based violence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
V
.
B
. and that the State
authorities had not done enough to protect her from such ill-treatment. She
relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
V
.
B
.
Accordingly, the Court accepts the Government’s objection concerning the second and third applicants’ failure to exhaust domestic remedies. This part of the application must thus be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
B
. Merits
1. The parties’ submissions
(a) The first applicant
V
.
B
. They had failed to evict the
aggressor and effectively found that his property right had precedence over her
right not to be subjected to ill-treatment. Moreover, although the courts had
found that
V
.
B
. had acted violently towards her, they had applied insignificant
sanctions which had no effect on
V
.
B
.’s behaviour. The situation did not change
even after communication of the present application to the respondent
Government, since
V
.
B
. had attacked her on 21 August 2011.
V
.
B
.
despite evidence of his violent behaviour towards her and in spite of her
argument that without an eviction the protection order could not be effective. Even
though she had withdrawn her complaint for fear that elements of her private
life would be divulged to the public, the authorities should have continued the
examination of the case against
V
.
B
. In her opinion,
Moldova
was one of the
very few countries in the Council of Europe where the initiation and
continuation of a criminal investigation of a crime as serious as rape depended
entirely on the alleged victim’s continued pressing of charges against the
alleged assailant. Given the vulnerable state of women victims of domestic
violence and rape, the discontinuation of the proceedings could only have taken
place after a very thorough investigation, unlike in the present case.
V
.
B
. intended to sell
his part of the apartment, even if it were to be privatised. Nor was there any legal
basis for forcing him to do so after privatisation. In any event, she had
expressly asked the courts not to decide on the ownership of the apartment but
to offer her protection by taking temporary measures against
V
.
B
.
(
b
) The Government
V
.
B
.
on 20 April 2008 (see paragraph 9 above). She had also failed to submit video
evidence of that attempted rape, which she had previously claimed was
available. Therefore, her own actions resulted in the discontinuation of the
criminal proceedings against
V
.
B
.
V
.
B
. for violent acts on several occasions, and the authorities had
registered him as a “family trouble-maker”. After the adoption of the
protection order of 2 September 2011 the authorities took additional steps by
informing the local police and
V
.
B
. himself and by making checks on his
behaviour on a regular basis (see paragraph 18 above).
V
.
B
. and which ended with the judgment of 20 May
2009, this was not a real attempt to defend herself against any risk of
violence but rather an attempt to obtain
V
.
B
.’s share of the common apartment,
as found by the Supreme Court of Justice. That court also found that the
evidence in the file was insufficient to establish a systematic breach of the
rules of living together. Finally, it was clear that the first applicant had
lodged her application with the Court some six months after the cessation of
violent acts towards her. This proved once more the absence of a real risk of
further domestic violence.
2. The Court’s assessment
(a) General principles
42. The Court reiterates that
ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum is relative: it depends
on all the circumstances of the case, such as the nature and context of the
treatment, its duration, its physical and mental effects and, in some
instances, the sex, age and state of health of the victim (see Costello-Roberts
v
. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C
and Kudła
v
. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI).
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).
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).
v
. Bulgaria, no. 39272/98, § 151, ECHR 2003-XII, and Denis Vasilyev
v
. Russia,
no. 32704/04, §§ 98-99, 17 December 2009). For the investigation to be
regarded as “effective”, it should in principle be capable of leading to the
establishment of the facts of the case and to the identification and punishment
of those responsible. This is not an obligation of result, but one of means. In
cases under Articles 2 and 3 of the Convention where the effectiveness of the
official investigation has been at issue, the Court has often assessed whether
the authorities reacted promptly to the complaints at the relevant time.
Consideration has been given to the opening of investigations, delays in taking
statements and to the length of time taken for the initial investigation (see Denis Vasilyev, cited
above, § 100 with further references; and Stoica
v
. Romania, no. 42722/02, § 67, 4 March 2008).
46. Interference by the
authorities with the private and family life may become necessary in order to
protect the health and rights of a person or to prevent criminal acts in
certain circumstances (see Opuz, cited above, § 144). To that end States
are to maintain and apply in practice an adequate legal framework affording
protection against acts of violence by private individuals (see X and
Y
v
. the Netherlands, 26 March 1985, § 22 and 23,
Series A no. 91; Costello-Roberts
v
. the United
Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P.
and J.C.
v
. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C.
v
. Bulgaria, cited above, §§ 150 and 152, ECHR 2003-XII; Bevacqua, cited above, § 65, and Sandra Janković
v
. Croatia, no. 38478/05, § 45, 5
March 2009).
(
b
) Application of these principles in the present
case
(i) Whether the first applicant was subjected to treatment contrary to Article 3 of the Convention
V
.
B
. has beaten the first applicant on a number of
occasions (see paragraphs 9 and 16 above). As is clear from the medical
certificate of 23 August 2011 (see paragraph 16 above), the doctor found various bruises on the first applicant’s body and noted her explanation that
V
.
B
.
had tried to rape her.
(ii) Whether the authorities complied with their positive obligations under Article 3 of the Convention
v
. Croatia, cited above, § 61 and Sandra
Janković, cited above, § 46).
V
.
B
.’s violent behaviour since they sanctioned
him administratively on a number of occasions (see paragraphs 9, 16 and 18 above). It is therefore necessary to determine whether the actions taken
by them to protect the first applicant were sufficient to satisfy their
positive obligations under Article 3.
V
.
B
.
(terminated after the first applicant withdrew her complaint). On five occasions
the courts fined
V
.
B
. (see paragraphs 9 and 16 above). However, none of these
measures were sufficient to stop
V
.
B
. from perpetrating further violence. In
particular, the Court notes that the fines applied to
V
.
B
. were small (see
paragraphs 9 and 16 above) and did not have any deterrent effect.
V
.
B
. The Court recalls its finding that, amongst the Member
States of the Council of Europe, in the context of withdrawal of complaints
about domestic violence “there appears to be an acknowledgement of the duty on
the part of the authorities to strike a balance between a victim’s Article 2,
Article 3 or Article 8 rights in deciding on a course of action” and that “... the more serious the offence or the greater the risk of further
offences, the more likely that the prosecution should continue in the public
interest, even if victims withdraw their complaints” (see Opuz,
cited above, §§ 138 and 139). In the present case, the authorities did not
make an analysis of whether the seriousness and number of attacks which the
first applicant had suffered on the part of
V
.
B
. and the seriousness of the first
allegation of rape had required to pursue the criminal investigation, despite
her withdrawal of that complaint. Moreover, despite a clear second allegation
of an attempted rape on 21 August 2011, coupled with medical evidence at least
partly confirming that allegation (see paragraph 16 above), it appears that the authorities did not institute of their own motion any investigation of that
matter, again limiting themselves to administrative proceedings.
V
.
B
.’s
eviction from their common apartment. However, in its decision of 20 May 2009
the Supreme Court of Justice rejected her claims, finding that the court action
was aimed at affecting
V
.
B
.’s right to use the apartment rather than at
protecting the first applicant from danger. It also found that, despite the six
administrative cases against
V
.
B
. for violent or insulting behaviour against
the first applicant, there was insufficient evidence that he had systematically
breached the rules of living together (see paragraph 14 above).
V
.
B
. from their common apartment after the attack of 21
August 2011 (see paragraph 17 above), the courts referred to the decision of 20
May 2009 as the ground for rejecting her request. The Court considers that the
domestic courts should have taken into consideration the factual developments
which had taken place after the decision of 20 May 2009 had been adopted,
namely the two additional attacks by
V
.
B
. (see paragraph 16 above).
V
.
B
. had again assaulted
the first applicant in their common apartment. This was the ground for the
courts’ adoption of a protection order on 1 September 2011 (see paragraph 18 above). However, while a number of measures were ordered which were aimed at
preventing any contact between
V
.
B
. and the first applicant, including a
prohibition on his approaching her or her place of work or of contacting her by
any means,
V
.
B
. was allowed to continue living in their common apartment. The
Court agrees with the first applicant’s argument, also made before the
Chişinău Court of Appeal (see paragraph 19 above), that allowing
V
.
B
. to live in the same apartment as his victim rendered ineffective other measures in
the protection order and exposed her to the risk of further ill-treatment.
V
.
B
.’s part of the apartment, the more so that the
eviction which she sought in 2011 was of a temporary nature and that she
expressly asked the courts not to decide on the property issue (see paragraph 17 above). This should have allowed the domestic courts to properly balance the two
competing rights protected under the Convention (the applicant’s right not to
be subjected to ill-treatment and
V
.
B
.’s right to use the apartment), by
offering real protection to the applicant, while not depriving
V
.
B
. of his
possessions. They could have also considered whether the applicant’s argument
based on Article 102 of the Housing Code (see paragraph 22 above) had any substance. However, they failed to do
so.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
V
.
B
.’s temporary eviction from their apartment
subjected them to suffering which was incompatible with their right to private
life. They relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
B
. Merits
1. The parties’ submissions
V
.
B
.’s interference with her private
life. She argued that as a result of the domestic courts’ decisions she was
essentially being forced to flee her home, even though - just as
V
.
B
. - she had
nowhere else to go. She argued that the judgment of the Supreme Court of
Justice of 20 May 2009 placed a disproportionate burden on her and resulted in
an interference with her private life which was disproportionate to the aim of
protecting
V
.
B
.’s right to use the apartment.
V
.
B
. to administrative sanctions and by monitoring him as a
“family trouble-maker”, with an additional level of monitoring instituted after
the adoption of the protection order of 2 September 2011. However, they could
not continue to prosecute
V
.
B
. after the first applicant’s withdrawal of her
criminal complaint against him accusing him of rape. Since the measures taken prevented
against any further violence, the first applicant’s insistence on
V
.
B
.’s
eviction was aimed at taking away his part of the apartment and was not a real
attempt to obtain protection.
2. The Court’s assessment
(a) General principles
v
. the Netherlands, 26
March 1985, §§ 23-24 and 27, Series A no. 91, and August
v
. the United Kingdom (dec.), no.
36505/02, 21 January 2003).
v
. the
Netherlands, cited above, §§ 22 and 23; Costello-Roberts
v
. the United
Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P. and J.C.
v
. the United Kingdom, no.
38719/97, § 118, 10 October 2002; M.C.
v
. Bulgaria, no. 39272/98,
§§ 150 and 152, ECHR 2003-XII; A
v
. Croatia, no. 55164/08, § 60, 14 October 2010; and Hajduová
v
. Slovakia, no. 2660/03, § 46,
30 November 2010). The Court notes in this respect that the
particular vulnerability of the victims of domestic violence and the need for
active State involvement in their protection has been emphasised in a number of
international instruments (referred to in the cases Bevacqua, cited
above, §§ 64-65, and Sandra Janković
v
. Croatia, no. 38478/05, §44-45,
ECHR 2009-... (extracts)).
(
b
) Application
of these principles in the present case
71. In
the present case, the Court notes that the applicant’s physical and moral integrity, which
is covered by the concept of private life (see X and Y
v
. the Netherlands,
26 March 1985, § 23, Series A no. 91), has been affected by periodic abuse
on the part of
V
.
B
. It refers, in this respect, to its findings made in
paragraphs 54-58 above concerning the suffering and anxiety which the applicant
felt in her own apartment, being faced with the real possibility of
ill-treatment there.
74. It
notes in this respect that in reversing the lower courts’ decisions on 20 May
2009 the Supreme Court of Justice did not find the six sets of administrative
proceedings against
V
.
B
. as proving with sufficient certainty a pattern of his
violent behaviour against the first applicant. In the 2011 proceedings, the courts
simply referred to the judgment of 20 May 2009 to confirm
V
.
B
.’s right not to
be evicted from the apartment, without any consideration of the further acts of
violence committed by him in 2010 and 2011. They did not make any attempt to
determine whether
V
.
B
.’s right to use the apartment had been exercised in a
manner violating the first applicant’s rights under Article 8 of the Convention
and in breach of Article 102 of the Housing Code (see paragraph 22 above).
75. In such circumstances, the Court concludes that the domestic authorities did not properly comply with their positive obligations under Article 8 of the Convention. They failed to balance the rights involved and effectively forced the first applicant to continue risking being subjected to violence or to leave home.
There has, accordingly, been a violation of Article 8 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Non-pecuniary damage
B
. Costs and expenses
v
.
Moldova
(no. 41088/05, § 176, 11 July 2006)
the Court had accepted as reasonable a rate of EUR 75 per hour, in view of the
complexity of the case and the extensive input by the lawyers. The present case
was not so complex.
v
. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII).
C. Default interest rate
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits the Government’s objection concerning the first applicant’s failure to exhaust domestic remedies and rejects it;
2. Declares admissible the first applicant’s complaints under Articles 3 and 8 of the Convention, and the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 3 of the Convention;
4. Holds that there has been a violation of Article 8 of the Convention;
5. Holds
(a) that the respondent State is to pay the first applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(
b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above amounts
at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 16 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President