Mihaela Mara PĂTRĂUCEANU-IFTIME
The European Court of Human Rights (Fourth Section), sitting on 8 January 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 9 April 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Ms Mihaela Mara Pătrăuceanu-Iftime, is a Romanian national who was born in 1975 and lives in Iaşi. She was represented before the Court by Ms G. Lupșan, a lawyer practising in Iaşi.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1997 the applicant married P.I.N. Their children, F.P. and S.S.P., were born in 2001 and 2006 respectively.
5. According to the applicant, P.I.N. was always aggressive and violent towards her, both physically and verbally. The children were often present during the abuse, and they were often threatened with violence, slapped, punched or hit with a belt by their father. She filed for divorce, but withdrew her petition allegedly because of threats received from her husband.
6. On 12 May 2010 the Iași Forensic Institute issued a medical certificate which attested that the applicant’s son presented with ecchymosis, which would need one to two days to heal. According to the applicant, the violence had been perpetrated by her husband on 10 May 2010. She also claimed that on 14 March 2011 her son had been beaten with a belt by his father.
7. On 14 June 2011 the applicant was allegedly physically and verbally assaulted by her husband. She moved out of the marital home. The children remained with their father until September 2011, when the mother took them to the paternal grandfather’s home.
8. On 15 June 2011 the applicant lodged a criminal complaint against her husband in respect of the incident of 14 June 2011. On 20 June 2011 P.I.N. confessed that he had injured his wife. On 21 June 2011 the applicant informed the police that she had reconciled with P.I.N. and consequently withdrew her complaint. According to the applicant, the Iași police had encouraged her to drop the complaint because her injuries were not serious.
9. In a report of 20 July 2011 the police established, on the basis of the parties’ statements, that P.I.N. had slapped and pushed the applicant and had pulled her hair. It was also noted that the applicant had not provided a medical certificate. It noted, however, that she had withdrawn her complaint. Consequently, the police decided not to start a criminal prosecution, and its decision was upheld by the prosecutor’s office attached to the Iaşi District Court on 2 September 2011. The applicant did not contest that decision before the courts.
1. Divorce proceedings
10. On 30 May 2011 the applicant sought a divorce based on the sole fault of P.I.N. He in turn lodged a counterclaim and asked the court to declare both spouses responsible for the breakdown of their marriage.
11. On 22 June 2012 the Iași District Court dismissed the applicant’s action on the grounds that no fault could be attributed to P.I.N. for the breakdown of their relationship, which had been caused exclusively by the applicant engaging in an extramarital affair. It based its decision on statements by witnesses brought before the court by both parties, medical certificates from the applicant, and a report by the child protection authority. It found as follows:
“In accordance with the applicable legal provisions, a marriage may be dissolved based on the fault of the plaintiff spouse only in the cases referred to in Article 373 (c) (at the request of one of the spouses made after a period of two years’ separation). …
It appears from the witness statements that the relationship between the spouses was normal and that the problems arose when the plaintiff initiated an extramarital affair… In June 2010 the plaintiff left the marital home and started living with her lover [concubin], leaving the children with their father until September, when she took them away. …
The plaintiff’s assertions concerning the defendant’s violent behaviour towards the children are not supported by evidence; the medical certificate does not prove that it was the defendant who caused the injuries [sustained by the applicant’s son]. … The severity of such violent behaviour would necessitate more timely and efficient intervention by the plaintiff, such as informing the authorities, but also removing the minors from the violent environment. The plaintiff did not do so, and the fact that she did not take any of the actions mentioned above proves that the violence was not perpetrated by the father.
The plaintiff’s allegations are contradicted by her behaviour. In fact, if the minors were subject to violence, and [were in] real danger from the defendant, they should not have been abandoned by their mother. In reality, the plaintiff left her home in June and left the children with their father until September. …
In the light of the above, it is evident that the plaintiff bears responsibility for the breakdown of the marriage in that she initiated an extramarital affair and left the marital home in June 2011. …
In the present case, there is no evidence that the defendant [was responsible] for the breakdown of the marriage. …”
12. On 18 March 2013 the Iași County Court allowed an appeal by the applicant and granted the divorce based on the fault of both spouses.
13. P.I.N. lodged an appeal on points of law against this decision. He pointed out that he was a priest and that the Statute of the Romanian Orthodox Church would not allow him to continue practising as a priest if the divorce court established that his actions had contributed to the deterioration of the marriage.
14. On 9 October 2013 the Iași Court of Appeal allowed P.I.N.’s appeal and quashed the County Court’s decision. Consequently, the court did not grant the couple’s divorce. It found as follows:
“A court may grant a divorce based on the sole fault of the defendant spouse when the relationship between the spouses is severely damaged and the marriage can no longer continue for serious reasons imputable to [the defendant spouse].
A court may grant a divorce based on the fault of both spouses, even when the request is made by only one spouse – if the evidence shows that both spouses are responsible for the breakdown of their marriage. …
The evidence in the file … did not prove that the plaintiff had left the marital home because of the defendant … or that he had been violent with her.
Consequently, it was not proved that the defendant spouse had contributed to the separation.
For this reason, given that the evidence shows that the plaintiff alone was responsible for the breakdown of the marriage, a divorce under Article 373 (b) of the Civil Code cannot be granted.
[As] provided for in Article 373 (c) of the Civil Code, a divorce can be granted based on the sole fault of the plaintiff spouse only if the couple have been separated for a period of two years and the plaintiff spouse admits responsibility for the breakdown of the marriage; in the present case the plaintiff … does not admit such responsibility.”
2. Incident of 27 November 2013
15. On 27 November 2013 while the applicant was taking the children to school, P.I.N. blocked her passage, yelled and insulted her, and attacked her with a crowbar. The children became scared and ran away during the attack. The applicant, together with two other individuals, attempted to find the children, while P.I.N. followed her by car.
16. On the same day the applicant and her children were given refuge for a period of fourteendays at a centre for the protection of victims of domestic abuse. On 12December 2013 their stay there was extended for six months.
17. On 27 November 2013 the applicant lodged a criminal complaint against P.I.N. in respect of the incident which had taken place that morning. On 6 February 2014 the Iaşi police initiated criminal proceedings against P.I.N. for threatening behaviour and domestic violence. On 25 November 2014 the prosecutor’s office attached to the Iaşi District Court ended the investigation, as there was no evidence to support the applicant’s allegations. The applicant did not contest that decision before the courts.
18. On 11 December 2013 the applicant applied to the Iași District Court for a protection order against P.I.N. following the incident of 27 November 2013.
19. On 7 February 2014 a psychological assessment established that the violent episode had had a negative impact both on the children and on the applicant. It was noted that the children had been experiencing fear, anger, and intense negative feelings, while the applicant had been suffering from episodes of anxiety and depression.
20. On 13 February 2014 the Iași District Court allowed the applicant’s application (see paragraph 18 above) and issued a protection order against P.I.N. It ordered him to stay at a distance of no less than 20 metres from the applicant and her children, and no less than 100 metres from her place of work and the children’s school. The court relied on witness statements, statements by the children (who had expressed negative feelings towards their father) and psychological reports.
21. On 17 February 2014 P.I.N. appealed against the order, but in a final decision of 6 August 2014 the Iaşi County Court dismissed the appeal and upheld the protection order.
3. New divorce proceedings
22. On 18 March 2014 the applicant requested a divorce based on the sole fault of P.I.N. In his counterclaim P.I.N. asked the court to find the applicant solely responsible for the breakdown of their marriage. On the date of the last communication to the Court from the parties on this issue (11 July 2017), the proceedings were pending before the Iaşi District Court.
B. Relevant domestic law
23. The Civil Code, as applicable at the time of the relevant events, provided as follows:
Article 373 – Grounds for divorce
“A divorce may be granted:
(a) with the agreement of both spouses or at the request of both spouses or one spouse and accepted by the other spouse;
(b) when, for good reasons [motive temeinice], the relationship between the spouses has severely deteriorated and their marriage can no longer continue;
(c) at the request of one of the spouses, after at least two years of separation;
(d) at the request of the spouse whose state of health renders the continuation of the marriage impossible.”
Article 379 – Divorces based on fault: conditions
“(1) In the cases referred to in Article 373 paragraph (b), a divorce may be granted if the court establishes the sole fault of one of the spouses for the deterioration of the marriage. However, if both spouses are responsible, the court may grant a divorce based on the fault [of both spouses], even if only one spouse requested the divorce. If the fault lies solely with the claimant, the provisions of Article 388 shall apply.
(2) In the cases referred to in Article 373 paragraph (c), a divorce shall be granted based on the sole fault of the claimant, unless the defendant agrees to the divorce, in which case a divorce shall be granted without the attribution of fault.”
Article 388 – Right to compensation
“Notwithstanding the right to compensation provided for in Article 390, the spouse who bears no responsibility for the divorce but who suffers harm as a result of the breakdown of the marriage may request compensation from the spouse who is at fault …”
24. Under Article 389 of the Civil Code, a spouse who is unable to work may request financial support and, under Article 390 of the Civil Code, if the marriage lasted for at least twenty years the spouse who was not at fault for the breakdown of the marriage may receive a compensatory allowance in order to rectify any significant alteration in lifestyle caused by the divorce.
25. The relevant provisions of the Criminal Code, the Code of Criminal Procedure, and Law no. 217/2003 on the prevention and fight against domestic violence are summarised in E.M. v. Romania (no. 43994/05, §§ 41-45, 30 October 2012).
26. The applicant complained under Article 8 § 1 of the Convention that the refusal to grant her a divorce from her abusive husband had forced her to maintain a marriage which did not correspond to her real-life situation. It had furthermore compelled her and her children to return to a violent environment, which had caused them additional psychological trauma. She submitted that the evidence substantiating her claims of domestic violence had been overlooked by the courts, which had led to a breach of her and her children’s right to physical and psychological integrity.
27. The applicant complained under Article 3 of the Convention that the refusal to grant her a divorce had constituted a form of tolerance towards domestic violence, having deprived her and her children of adequate protection from P.I.N.’s subsequent violent behaviour on 27 November 2011.
28. Under Article 5 Protocol No. 7 to the Convention, the applicant complained that her request for a divorce had been refused in order to protect her husband in his capacity as a priest.
A. Complaint under Article 8 of the Convention on account of the divorce proceedings
29. The applicant complained, under Articles 3 and 8 § 1 of the Convention, that the refusal to grant her a divorce from her abusive husband had forced her to maintain a marriage which did not correspond to her real‑life situation. Under Article 5 Protocol No. 7, she also complained that her request for a divorce had been refused in order to protect her husband because of his profession.
30. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), will examine the complaint from the standpoint of Article8 alone (see, for example and mutatis mutandis,Cristescu v.Romania, no. 13589/07, § 50, 10 January 2012, and Jovanovic v. Sweden, no. 10592/12, § 53, 22 October 2015). This provision 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.”
1. The parties’ observations
31. The Government accepted that the claim fell within the ambit of Article 8 and that the applicant had suffered an interference with the right to respect for her private life. They nevertheless argued that the interference had been in accordance with the law, specifically Articles 373, 379, 388, and 390 of the Civil Code. More particularly, the Government explained that, under the provisions of Articles 373 (b) and 379 of the Civil Code, the courts could not grant a divorce based on the sole fault of the claimant spouse if the defendant spouse had not requested a divorce as well.
32. They also contended that the interference with the applicant’s rights had pursued the legitimate aim of protecting the procedural rights of others.
33. The Government argued that the interference had been proportionate to the legitimate aim pursued. They reiterated that the applicant had not accepted any responsibility for the breakdown of her marriage, thereby making it impossible for the domestic courts to grant the divorce. She could have amended her initial application in order to allow the domestic courts to grant the divorce. However, although she had been assisted by a lawyer, she had not used this avenue. Moreover, the Government pointed out that the divorce had been granted before the incident of 27 November 2013 (see paragraph 15 above).
34. Lastly, the Government pointed out that, in accordance with the applicable law, the applicant had been free to lodge a new petition for divorce, in which case the domestic courts would have examined the situation in the light of the above-mentioned incident.
35. The applicant pointed out that she had not met the requirements set forth in Article 373 (c) of the Civil Code as she had not been separated from her spouse on the date when she had filed for divorce. In any case, she argued that the courts had ignored the evidence pointing to her spouse’s violent behaviour, thereby breaching the children’s best interests. She submitted that the courts had been influenced by the fact that P.I.N. was a priest and that the divorce would damage his career and tarnish his image as a righteous and gentle person. She also reiterated that in denying her the divorce, the courts had artificially maintained the marriage, in contradiction of her real-life situation. She concluded that the interference with her right to respect for her private life had not been necessary in a democratic society.
2. The Court’s assessment
36. The Court makes reference to the general principles that it has established for the protection of the right to respect for private life (see, notably, Babiarz v. Poland, no. 1955/10, §§ 46-50, 10 January 2017, with further references). In particular, it reiterates that in the area of framing their divorce laws and implementing them in concrete cases, the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention and to reconcile the competing personal interests at stake (ibid., § 47).
37. Turning to the facts of the present case, the Court notes that the domestic courts examined the facts in detail and in the proper context of domestic law. The applicant had an opportunity to present her position to the court and bring evidence. The reasoning of both the first-instance and appellate court contained a detailed explanation of the interests that were taken into account, how the evidence was assessed and what the grounds were for the decision to dismiss her petition for divorce (see paragraphs 11 and 14 above).
38. Moreover, at the time when the courts examined the divorce petition she was unable to produce conclusive evidence of abusive behaviour on the part of her spouse (see, in particular, the findings of the court of first instance, in paragraph 11 above).
39. The Court has previously held that a request for a divorce should not be granted regardless of the procedural and substantive rules of domestic divorce law, by a person simply deciding to leave his or her spouse (see, mutatis mutandis, Babiarz, cited above, § 54).
40. Lastly, the Court notes that the applicant was not prevented from submitting a new petition for divorce (see paragraphs 22 and 34 above) which the domestic courts will examine in the light of the new circumstances of the case and on the basis of the evidence that the parties will present.
41. In view of the above, the Court considers that the positive obligations arising under Article 8 of the Convention did not impose a duty on the national authorities to accept the applicant’s petition for divorce as formulated by her.
42. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§3(a) and4 of the Convention.
B. Complaint under Articles 3, 8 and 14 of the Convention on account of domestic violence
43. The applicant complained under Articles 3 and 8 of the Convention that the refusal to grant her a divorce had constituted a form of tolerance towards domestic violence, having deprived her and her children of adequate protection from P.I.N.’s subsequent violent behaviour. The Court will examine this complaint also under Article 14 of the Convention (see paragraph 30 above and Opuz v. Turkey, no. 33401/02, § 191, ECHR 2009). Articles 3 and 14 of the Convention read as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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.”
1. The parties’ observations
44. The Government argued that the applicant had not complained that after the incident of 27 November 2013 the authorities had remained passive and had tolerated the domestic violence to which she had fallen victim. Therefore, they considered that the applicant had not raised a complaint under Articles 3, 8 or 14 concerning this aspect. Consequently, such a complaint did not fall within the scope of the application.
45. The Government contended that the applicant had failed to exhaust domestic remedies, in so far as she had not lodged a complaint with the courts against the prosecutor’s decision of 25 November 2014 (see paragraph 17 above). Relying on E.M. v. Romania (no. 43994/05, § 62, 30 October 2012) the Government argued that the system put in place by the respondent State had offered the applicant an effective remedy for bringing her allegations of domestic violence before the authorities.
46. On the merits, concerning the first criminal complaint (see paragraph 8 above) the Government argued that the applicant had not submitted a medical certificate, thereby rendering it impossible for the authorities to assess the severity of her injuries. In this context, her allegation that the police had advised her to withdraw her complaint for any lack of serious injuries was ill-founded in so far as the authorities had had no means of assessing her injuries.
47. As for the complaint raised under Article 14, the Government pointed out that the police had never tried to dissuade the applicant nor had they considered that the matters were strictly private.
48. The applicant reiterated that the courts had ignored the abuse committed by her husband against her and had taken his side because of his social position and profession. She further argued that in ignoring the abuse, the authorities had enabled the perpetrator and made it possible for more violence to take place, in particular the episode having led to the adoption of the protection order (see paragraphs 15 and 20 above).
2. The Court’s assessment
49. At the outset, the Court notes that the Government suggested that the applicant had not raised a complaint concerning domestic violence with the Court. However, the Court will not examine this objection because, in any event, this complaint is inadmissible for the reasons explained below.
50. The Court has already had the opportunity to examine the mechanism put in in place by the respondent State to combat domestic violence. It noted that the law allowed victims to bring their grievances before the domestic authorities and obtain their protection, and that the system was functional (see E.M. v. Romania, cited above, § 62).
51. Turning to the facts of the case under examination, the Court notes that the applicant complained to the police on two occasions about her husband’s aggressive behaviour (see paragraphs 8 and 17 above). Both times the police investigated the claims (see, in contrast, Opuz, cited above, §§ 143-44, and Talpis v. Italy, no. 41237/14, § 117, 2 March 2017). With respect to the first incident, the police considered that P.I.N. had injured the applicant, but took note that she no longer wished to pursue her complaint (see paragraph 9 above). The Court does not find any indication that the authorities disregarded the seriousness of the allegations brought by the applicant or that they carried out their duties in a perfunctory manner (see, in contrast, Opuz, cited above, §§ 199-200, and Eremia v. the Republic of Moldova, no. 3564/11, § 89, 28 May 2013. With respect to the second incident, the prosecutor concluded that there was no evidence to support the allegations of domestic violence (see paragraph 17 above). In both cases, the applicant failed to complain about the prosecutor’s decision.
52. The Court reiterates that there is a duty on the part of the authorities to assess the opportunity of continuing the investigations even when the victim withdraws her action (see Opuz, cited above, § 138). However, in the present case, it was not proven that the violence committed by P.I.N. had been sufficiently serious to warrant prosecution and that there had been a constant threat to the applicant’s physical integrity (see, in contrast, Opuz, cited above, § 168).
53. On this point, the Court reiterates that, under the applicable law, if the applicant considered that the public prosecutor’s decision could be argued as not being justified by the available evidence, it was open to her to appeal to the domestic courts which could, on examination of the provisions of the domestic law and the evidence, including witness statements and medical reports, have directed that a prosecution or other investigatory measures be carried out. The Court has already established that such a remedy is effective within the meaning of the Convention (see Stoica v. Romania, no. 42722/02, §§ 105‑09, 4 March 2008, and Ciubotaru and Others v. Romania (dec.), no. 33242/05, § 59, 10 January 2012). The applicant gave no explanation why, in her particular case, it would not have been effective in practice. For this reason, the Court cannot but conclude that the applicant should have pursued the remedy to its completion, and challenged the prosecutor’s decisions before a court.
54. The Court also notes that, in addition to the criminal complaint mechanism, the applicant fully benefited from the authorities’ protection in the form of her immediate refuge in a centre for the protection of victims of domestic abuse (see paragraph 16 above) and the protection order issued against P.I.N. (see paragraph 20 above, and also, in contrast, Opuz, § 172, and Talpis, § 144, both judgments cited above).
55. For these reasons, the Court concludes that the mechanism put in place for the protection of victims of domestic violence, in so far as the applicant made use of it, was effective in practice (see, in contrast, Opuz, cited above, § 199). The authorities have therefore complied with their positive obligations.
56. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§3(a) and4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 31 January 2019.
Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President