Obligation on authorities to provide adequate protection against domestic violence
II. RELEVANT DOMESTIC LAW A. Code of Civil Procedure (applicable up to and including 31 December 2001) 20. Article 74 (1) of the Code of Civil Procedure, provides as follows: “Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened. The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.” 21. Article 76 provides that through an interim measure the court may impose upon the party, within the time assigned by the court, to perform something, to forbear from something, or to bear something. B. Code of Civil Procedure (as applicable from 1 January 2003 to 31 August 2003) 22. The amended Article 74 provided: “Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened. The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.” 23. The amended Article 76 specifically provides that the court may order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.” C. Civil Code (as applicable from 1 January 2003) 24. Article 705a (8) of the Civil Code provides: “If a further cohabitation is unsupportable due to the physical or mental violence or threats of such violence from a husband or former husband, who is the joint user of an apartment, or from a close person jointly using an apartment, based on a motion of one of a married couple or former married couple the court can limit a right of use of the other of a married couple or exclude him/her totally from the right of use of an apartment. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 25. The applicants complained under Articles 3 and 8 of the Convention that the authorities had failed to protect them in an appropriate manner from treatment to which they had been subjected by their husband/father. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 26. Article 8 of the Convention 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.” 27. The Government admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants. Nevertheless, the Government contended that the second, third and fourth applicants were no longer victims because they were provided with satisfactory redress at the national level. 28. With regard to the first applicant, the Government submitted that her application was inadmissible as she failed to exhaust domestic remedies. A. Admissibility 29. The Government submitted that the first applicant failed to exhaust domestic remedies. The Regional Court advised her that she had not formulated the claim correctly and that she should have requested the issuance of an interim measure formulated with regard to the specific behaviour of her former husband. In this regard she was in a different position from the second, third and fourth applicants, who, as minors, were warranted special protection by the courts. Unlike the other applicants, the first applicant could not succeed before the civil courts without a legally relevant motion. As she at no time brought such a motion her subsequent complaint to the Constitutional Court was unsuccessful. 30. The Government further submitted that adequate redress had been afforded to the second, third and fourth applicants through the Constitutional Court ’ s decision of 9 July 2003, in which it held in substance that the failure of the lower courts to meet the positive obligation to protect vulnerable minors had violated their rights under Articles 3 and 8 of the Convention. They submitted that redress did not consist exclusively in the provision of financial satisfaction. Rather, they argued that in the event of a violation of Article 2 or 3 of the Convention, compensation of non-pecuniary damage is only one of the possible remedies ( Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2 001 ‑ III). In the present case, the Constitutional Court considered the specific circumstances of the case and concluded that the finding of a violation amounted to sufficient satisfaction. In particular, the court noted that the first applicant had contributed to any injury incurred by failing to file a motion in the terms directed by the Regional Court. Moreover, the Government submitted that by the date of the Constitutional Court decision, the applicants ’ husband/father had been sentenced to four years ’ imprisonment and Article 76 of the Code of Civil Procedure had been amended to specify that the courts had jurisdiction to order that a person suspected of violence could not enter a particular house or apartment. 31. The first applicant submitted that the remedy identified by the Government, namely an order that her former husband abstain from inappropriate behaviour towards her and the second, third and fourth applicants, did not amount to an effective remedy because it would not have afforded sufficient protection to her or her children. As the threat of a significant prison sentence failed previously to deter her former husband from “inappropriate behaviour”, it was not reasonable to conclude that the interim measure would have afforded her sufficient protection. 32. The second, third and fourth applicants submitted that they had not lost their victim status as the national authorities had not afforded them adequate redress for the breach of their Convention rights. In particular, they submitted that in similar cases the Constitutional Court had frequently, and almost without exception, granted applicants appropriate financial satisfaction. 33. The Court recalls that it is incumbent on a Government claiming non-exhaustion to satisfy the Court that there was an effective remedy available in theory and in practice at the relevant time which was accessible, capable of providing redress in respect of the applicant ’ s complaints and offering reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV). In view of the comments made by the Regional Court, it would appear that the first applicant would have had a reasonable prospect of success had she applied for an interim measure ordering her former husband to refrain from any inappropriate behaviour. The Court is not persuaded, however, that such an interim measure would have provided adequate redress in respect of the first applicant ’ s claims. She was concerned that her former husband, who at the time stood accused of physically assaulting both her and her children and of sexually abusing one of her daughters, still had a legal right to enter and reside in the rented property which she shared with the children. She therefore requested an interim order excluding him from the property. An order requiring him to refrain from inappropriate behaviour towards her or the children would have afforded substantially weaker protection than that originally sought. In fact, all that the order would have required of the first applicant ’ s former husband was that he refrained from doing acts already prohibited by the criminal law, which previously had failed to provide an adequate deterrent. The Court therefore finds that an application for such an interim measure did not constitute an effective domestic remedy for the purposes of Article 35 § 1 of the Convention. The first applicant has therefore exhausted all effective domestic remedies. 34. With regard to the second, third and fourth applicants, the Court recalls that the nature of the right at stake has implications for the type of remedy the State is required to provide. Where violations of the rights enshrined in Articles 2 and 3 are alleged, compensation for pecuniary and non-pecuniary damage should in principle be part of the range of redress available (see Öneryıldız v. Turkey [GC], no. 48939/99, § 147, ECHR 2004 ‑ XII; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 97, ECHR 2002 ‑ II; Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001 ‑ V; and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V). 35. In the present case the State provided a remedy through which compensation for non-pecuniary damage was, at least in principle, part of the redress available. Nevertheless, having found a violation of the second, third and fourth applicants ’ rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse, the Constitutional Court declined to award financial compensation, finding instead that the identification of a violation alone amounted to adequate redress. 36. The Court is not persuaded by the reasons proffered by the Government for the decision not to award financial compensation to the second, third and fourth applicants. In view of the Constitutional Court ’ s finding that the lower courts could have – and should have – granted the original application made by the first applicant, and this Court ’ s finding that an application for an interim measure in the terms suggested by the Regional Court did not constitute an effective remedy, the Court finds little force in the Government ’ s submission that any subsequent injury sustained by the applicants was at least in part the first applicant ’ s responsibility for failing to make a second application. Moreover, the conviction of the second, third and fourth applicants ’ father more than two years after the first application was filed on 21 May 2003 and the subsequent amendment to the Code of Criminal Procedure in January 2003 did not amount to adequate redress for three minors who were forced to leave the family home because the State failed to offer them protection from an abusive parent for up to two years. 37. The Court therefore finds that as a result of the Constitutional Court ’ s failure to award financial compensation to the second, third and fourth applicant, they have not obtained adequate redress for the violation of their rights under Articles 3 and 8 of the Convention. 38. The Court further notes that the application is not inadmissible on any other grounds. The application must therefore be declared admissible. B. Merits 39. The Government have admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government have further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants. 40. The Court therefore finds that the respondent State failed to discharge the positive obligation to protect the rights of the second, third and fourth applicants under Articles 3 and 8 of the Convention. 41. The first applicant denied that her rights under Articles 3 and 8 were adequately protected by the State 42. The Government, on the other hand, submitted that she had failed to obtain protection from her former husband because she wrongly formulated the claim of her motion. By contrast, all of her subsequent applications for protection were successful. On 7 July 2003, following an amendment to the law, an interim measure was granted forbidding her former husband from entering the apartment and subsequently, on 10 December 2004, the right to the joint lease on the apartment was cancelled. In any case, on 18 June 2003 the first applicant ’ s former husband was convicted of cruelty towards her and the children and was sentenced to over four years in prison. Consequently, the Government submit that the first applicant was provided with effective protection against ill-treatment at the hands of her former husband and against any interference with her right to respect for her private and home life. 43. The Court has already found that the alternate measure proposed by the Regional Court would not have afforded the applicant adequate protection against her former husband. The subsequent orders relied on by the Government were only granted in July 2003 and December 2004. The applicant could not have brought the application for an interim measure forbidding her former husband from entering the apartment until after the relevant law was amended in January 2003. It is not clear why the order severing the tenancy was not granted until December 2004 when the divorce was finalised in May 2002, or indeed whether the fault for this delay lies with the first applicant or the domestic court. In any case the first applicant was not in a position to apply to sever the tenancy until her divorce was finalised in May 2002, approximately a year after the allegations were first brought against her former husband. Given the nature and severity of the allegations, the first applicant and her children required protection immediately, and not a year or two years after the allegations first came to light. The Court finds that during this period no effective remedy was open to the first applicant by which she could secure protection for herself and her children against the acts of her former husband. 44. In relation to the second, third and fourth applicants, the Government admitted that if they were victims for the purposes of Article 35 § 1, there had been a failure to protect them which resulted in a violation of their rights under Articles 3 and 8 of the Convention. In relation to the first applicant, the Government argued that the State had offered her adequate protection against her former husband. The Government have not, however, suggested that the first applicant was not subjected to treatment which reached the threshold of Articles 3 and 8. Therefore, in view of the Court ’ s finding that the State did not offer her adequate protection against her former husband, the Court finds the respondent State failed to discharge the positive obligation to protect the rights of the first applicant under Articles 3 and 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 45. The applicants alleged that the facts of the case also gave rise to a violation of Article 5 § 1 of the Convention. 46. The Court has examined this complaint but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 47. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicants claimed the following sums in respect of non-pecuniary damage : The first applicant: EUR 16, 596.96; The second applicant: EUR 33,19 3.92; The third applicant: EUR 23,235.74; The fourth applicant: EUR 23,235.74. 50. The Government submitted that the claims were overstated and did not reflect the true subject value of the claims. 51. While the Court has found a violation of Article 3 of the Convention in respect of each of the four applicants, the violation was breach of a positive obligation to take adequate steps to protect the applicants. As a consequence, the applicants had to leave their home and relocate elsewhere. There is no indication that they subsequently were subjected to further ill-treatment or abuse. 52. Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that claimed by the applicants. Moreover, it sees no basis for distinguishing between the applicants in respect of the quantum of the award. They are a family unit and the violation affected them collectively and equally. 53. The Court therefore awards the applicants jointly EUR 8, 000 in respect of non-pecuniary damage. B. Costs and expenses 54. The applicants also claimed EUR 650.60 for the costs and expenses incurred before the Constitutional Court and EUR 1, 437.8 3 for those incurred before the Court. 55. The Government submitted that the applicants have not provided evidence to prove that they actually paid the sums claimed to their advocate. Moreover, the Government submitted that the amount charged by the advocate and claimed by the applicants was overstated. 56. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Provided that the costs have in fact been incurred, it is not necessary for the applicant to demonstrate that they have been paid to the advocate. In the present case, the advocate has submitted a bill and the Court is satisfied that the costs set out therein were incurred in the course of proceedings before this Court and the Constitutional Court. The Court therefore considers it reasonable to award the applicants jointly the sum of EUR 2, 000 covering costs under all heads. C. Default interest 57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that Slovakia had failed to provide the first applicant and her children with the immediate protection required against her husband’s violence, in violation of Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to private and family life) of the Convention. It observed that, given the nature and severity of the allegations, the first applicant and the children had required protection immediately, not one or two years later. The first applicant had further been unable to apply to sever the tenancy until her divorce was finalised in May 2002, or to apply for an order excluding her former husband from the matrimonial home until after the law was amended in January 2003. She had therefore been without effective protection for herself and the children during the interim.