State’s duty to protect physical and psychological integrity of individuals
II. RELEVANT DOMESTIC LAW A. Act no. XIX of 1998 on the Code of Criminal Procedure Section 138/A – Restraining Order “ (1) A restraining order restricts the right of the accused to free movement and the free choice of residence. The accused under the effect of a restraining order shall, in line with the rules established by the court decision, a) leave the dwelling specified by the court and keep away from such dwelling for a period prescribed by the court, b) keep away from the person specified by the court, and from this person ’ s home, workplace, ... for a period specified by the court, c) refrain from directly or indirectly contacting the person specified by the court. (2) A restraining order may be issued in case of a well-founded suspicion of a criminal act punishable by imprisonment having been committed – provided that the purpose of the restraining order may be fulfilled and if pre-trial detention of the accused is not necessary – and if, particularly in view of the nature of the criminal act, the behaviour of the accused prior to and during the procedure and the relationship between the accused and the aggrieved party, there is well-founded reason to assume that if left in the residential environment, the accused would ... b) carry out the attempted or planned criminal act or commit another criminal act punishable by a prison sentence against the aggrieved party. ... (4) A restraining order shall be issued by order of a court. ... ” 36. A restraining order is valid between ten and sixty days. B. Act no. IV of 1978 on the Criminal Code Section 176 – Criminal Trespass “ (1) A person who enters or remains in another person ’ s home, other premises or fenced off area which constitutes part of the property, by force, menace, or on the false pretext of carrying out official duties, shall have committed a misdemeanour punishable by imprisonment of up to two years. ” C. Act no. LXXII of 2009 on Restraining Order due to Violence among Relatives 37. This law enables the police to place a temporary restraining order on the perpetrator for seventy-two hours, inter alia, if it finds evidence of domestic violence upon an onsite visit, or upon the report of the aggrieved party. The courts may issue a restraining order for up to thirty days. 38. However, the Act is only applicable to the relationships listed in it (section 1 subsection 5), and former common-law spouses do not fall within its scope if the relationship has not been previously registered. D. Act no. LXVI of 1992 on the Registration of Citizens ’ Personal Data and Residence 39. According to section 26( 4 ), the registration of a place of residence does not create any pecuniary rights or rights concerning the use of the property. E. Act no. IV of 1959 on the Civil Code 40. If a possessor ’ s ownership rights are interfered with, section 188(1) of the Civil Code provides for the protection of the possession (“ birtokvédelem ”) from any specified person. Application of this measure may be requested from the notary within one year of the beginning of the interference. The decision taken by the notary is subject to appeal before the domestic courts. If more than one year has passed, the discontinuance of the interference may be directly requested from the courts. F. Act no. III of 1952 on the Code of Civil Procedure 41. Section 156( 1 ) of the Code of Civil Procedure allows a party to request the courts, as an interim measure, to execute his or her claim or request for an interim measure to be applied, if it is necessary, inter alia, in order to prevent imminent damage from materialising or if the petitioner ’ s legal protection merits special consideration. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 42. The applicant complained that the Hungarian authorities failed to take positive measures to protect her from her violent former common-law husband. She relied on Articles 2, 3 and 8 of the Convention. The Court finds that this complaint should be analysed under Article 8, 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.” 43. The Government contested that argument. A. Admissibility 1. The Government ’ s arguments 44. The Government acknowledged that the applicant had submitted several criminal complaints for harassment, assault and trespass. However, they maintained that the applicant had failed to avail herself of all effective domestic remedies. In particular, she had failed to pursue several of her criminal charges for assault and thus the cases were discontinued. In addition, the Government argued that there had been no evidence or even indication that the applicant had been forced in any way or intimidated by the alleged perpetrator to withdraw her charges. Concerning her complaints of harassment and trespass, she had failed to file a private lawsuit after the discontinuation of the investigations. Furthermore, she had not appealed against the criminal judgments convicting her. 45. Apart from the failure to make full use of the criminal law remedies, the Government were of the view that the applicant had also failed to make effective use of the remedies under civil law. Firstly, she had not requested the protection of her possession from the notary or the court, despite the possibility provided by the Civil Code. The fact that she requested the notary on one occasion to ensure she was provided with keys to the apartment (see paragraph 31 above ) could not, in their opinion, be considered as a request for protection of a possession. Moreover, in the course of such proceedings, she could have requested an interim measure to be applied under section 156( 1 ) of the Code of Civil Procedure granting her exclusive possession of the apartment in question. 46. In the Government ’ s view, the obligation to exhaust domestic remedies could not be regarded as having been fulfilled by the applicant ’ s request to the notary to delete her address as Gy.B. ’ s place of residence (see paragraph 33 above). According to their reasoning, this request could not have provided effective redress for the applicant ’ s grievances as the registration of a place of residence did not create any rights concerning the use of real estate (see paragraph 39 ), therefore its deletion could not extinguish any rights either. In any event, the applicant had failed to seek judicial review of the notary ’ s decision. 2. The applicant ’ s arguments 47. The applicant disputed the Government ’ s arguments in general terms. She contended that the violation not only derived from the State ’ s actions, but also from its failure to act, against which no effective remedy was available. 3. The Court ’ s assessment 48. The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74 and 75, ECHR 1999 ‑ V, and Branko Tomašić and Others v. Croatia, no. 46598/06, §§ 35-37, 15 January 2009 ). 49. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200 ). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40 ). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV ). 50. Turning to the particular circumstances of the case, the Court notes the Government ’ s observations that the applicant failed to pursue her criminal complaints, and that she did not request the protection of her possession from the domestic courts. However, it observes that the applicant availed herself of several other remedies provided by domestic law. These proceedings, namely repeated requests for a restraining order and a civil claim to order Gy.B. to leave the flat (see paragraphs 17, 24 and 34 above), could in principle, if pursued successfully, have led to the removal – if only temporary – of Gy.B. from the flat the applicant lives in. In this connection the Court points out that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004 ‑ V (extracts); and Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005 ‑ XII (extracts ) ). 51. The Court further notes that there are three separate sets of civil proceedings pending before the domestic courts between the applicant and Gy.B., all of which have been suspended until the determination of yet another civil dispute. The Court therefore considers that for the applicant to avail herself of an additional civil action for the protection of her possession would be redundant. 52. In these circumstances the Court is satisfied that the applicant has thus exhausted domestic remedies. Consequently, the Government ’ s objection must be dismissed. Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 53. The applicant pointed out that while the Government had emphasised the difficulties in reconstructing the facts of an act which had happened behind closed doors, they had not taken into real consideration the positive obligation of the State to protect her private and family life. Her right to physical integrity had required the domestic authorities to decide on her civil disputes with Gy.B. within a reasonable time. The applicant further argued that a remedy which was slow could not be regarded effective. In her opinion, Article 8 of the Convention included her right to use her home being secure in her person and without disturbance. (b) The Government 54. The Government submitted that the Hungarian authorities had taken all measures which could reasonably be expected of them in the particular circumstances of the case in order to protect the applicant ’ s physical well-being, therefore meeting the State ’ s positive obligations. 55. As to the applicant ’ s injuries, the Government wished to point out that the applicant had exaggerated the severity of the abuse suffered by her and that her allegations had not always been credible. The authorities had had to respect Gy. B. ’ s right to be presumed innocent and the principle of in dubio pro reo. As the domestic courts had had the benefit of a direct hearing, they had been in the best position to assess the credibility of the applicant ’ s allegations. 56. Lastly, the Government observed that the applicant herself had also initiated assaults against Gy.B. and had been found guilty of acts of violence towards him. The fact that in many cases she had also benefited from the principle of in dubio pro reo shows that the authorities were not prejudiced against her. 57. In sum, the Government maintained that in the above -described circumstances, no further action could reasonably have been taken by the Hungarian authorities to protect the applicant ’ s physical well-being. 2. The Court ’ s assessment (a) General principles 58. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 22 and 23, Series A no. 91; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002 ‑ I; and Sandra Janković v. Croatia, no. 38478/05, § 44, 5 March 2009 ). 59. As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person ’ s physical and psychological integrity. Under Article 8, States have a duty to protect the physical and psychological integrity of an individual from threats by other persons. To that end they 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, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C; and Sandra Janković, cited above, § 45). For the Court, these considerations equally apply in situations where an individual ’ s right to the enjoyment of his or home free of violent disturbance is at stake. (b) Application of the above principles to the present case 60. The main issue in the present case is whether the State complied with its positive obligation to protect the physical integrity of the applicant from the threat posed by her former common-law husband. The applicant involuntarily shares her home with this person, which is aggravated by the fact that their relationship has deteriorated to such an extent that disputes - including mutual verbal and physical assaults - occur on a regular basis. Her civil actions and criminal complaints were to no avail. 61. In this connection, the Court reiterates that there is no doubt that the events giving rise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. The facts outlined above show that the applicant made credible assertions that over a prolonged period of time Gy.B. presented a threat to her physical integrity in her apartment and actually attacked her on a number of occasions. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the applicant from the violent behaviour of her former common-law husband exerted in her home, notwithstanding the fact that she had also been violent towards him. 62. The Court notes that the national courts instituted several sets of criminal proceedings against Gy.B. Having been found guilty on two occasions, he was released on parole and ordered to pay a fine. Two other sets of criminal proceedings for assault are pending against him. The Court is mindful of the fact that domestic courts are better placed to examine the issue before them and to ascertain the circumstances of the case, as they have the benefit of hearing the parties in person and examining the evidence. Moreover, the Court acknowledges that in a criminal case, the principle of in dubio pro reo serves as an important guarantee against arbitrary judgments. 63. The Court stresses that its task is not to take the place of the competent Hungarian authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46). Moreover, the Court is aware that in respect of a measure of restraint ordered against an individual, the interest of the protection of a person ’ s physical integrity conflicts with the other person ’ s right to liberty. 64. Notwithstanding the aforementioned, the Court finds it striking that the authorities needed more than one and a half years to decide on the applicant ’ s first request for a restraining order (see paragraphs 17 and 18 above). The fact that the applicant failed to appear at the first hearing and that Gy.B. requested the postponement of another hearing cannot justify the unreasonably long duration of the proceedings. The rationale of such a measure is to provide immediate or at least prompt protection for victims of violence. Even if the request is eventually dismissed, a decision should be taken without delay. The problem is further aggravated by the lack of legal deadlines for such decisions. 65. As to the dismissal of the applicant ’ s requests for a restraining order, the Court takes the view that the domestic courts failed to give sufficient reasons for their decisions. On both occasions, the courts referred to the hearings held in this matter, but apart from stating that the bad relationship was imputable to both parties and that the conditions for issuing a restraining order had not been met, they failed to put in writing the particular reasons justifying their decision. 66. The Budapest Regional Court acknowledged the risk of recidivism; however, it took the view that restraining order could not be issued as both parties were involved in the assaults. In this respect, the Court notes that if it could not be ordered in cases of mutual assaults, then the aim of providing effective protection to victims would be seriously undermined. The possibility that the victim acted in legitimate self-defence cannot be ruled out at that stage. Precisely this was established by the XX/XXI/XXIII District Court in its judgment of 6 July 2011 (see paragraph 26 above). The domestic court ’ s reasoning that a restraining order could not be issued in view of the aggrieved party ’ s involvement is therefore not acceptable. Moreover, in the case of mutually violent parties, restraining orders should be issued in respect of both parties in order to prevent contact between them. 67. The considerations above are further aggravated by the fact that the applicant falls outside the personal scope of the Act on Restraining Order due to Violence among Relatives (see paragraph 38 above). Though divorced people and former registered partners receive the same protection as married people, this is not afforded where the perpetrator is the former common-law husband and that tie was not registered with the authorities. While accepting that the legislature may legitimately seek to protect those within specific, recognised relationships, the Court observes nonetheless that the applicant was excluded from the protection of this Act. 68. Lastly, the Court must draw attention to the fact that there are three different sets of civil proceedings pending before the domestic courts concerning the apartment in question. These proceedings, namely an action initiated by the applicant to order Gy.B. to leave the apartment (see paragraph 34 above) and two sets of proceedings for the determination of ownership (see paragraphs 2 8 and 29 above) would, in theory, be capable of eradicating the root of the problem, which is the unwanted residence of Gy.B. in the flat. In light of the regular and rather violent disputes between the parties and the fact that those proceedings have been suspended since 2007 and 2008, respectively, the Court finds that the domestic courts failed to comply with their positive obligation to decide the cases within a reasonable time. 69. Having regard to the foregoing, and notwithstanding the respondent State ’ s margin of appreciation in the matter, the Court concludes that the Hungarian authorities failed to fulfil their positive obligations. 70. There has accordingly been a violation of Article 8 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 13 OF THE CONVENTION 71. Relying on Articles 2 and 3 of the Convention, the applicant complained that the Hungarian authorities failed to take positive measures to protect her from her violent former common-law husband. Moreover, invoking Article 13 of the Convention, the applicant maintained that the remedies offered were ineffective and failed to provide sufficient protection to her. 72. The Government contested these arguments in general terms. They pointed out in particular that Article 13 of the Convention does not require that recourse to a remedy always be successful irrespective of an unfounded claim. They argued that in the present case the applicant was able to raise her arguable claims of ill-treatment before the competent authorities but her claims were not found to be justified. The remedies provided for by the Hungarian criminal law qualify as effective remedies for well-founded claims. Therefore, the Government considered that the applicant ’ s complaint under Article 13 of the Convention was manifestly ill-founded. 73. Regard being had to its finding of a violation of Article 8 of the Convention (see paragraph 70 above), the Court, while declaring these complaints admissible, does not consider it necessary to examine them separately under Articles 2, 3 or 13 of the Convention, their essence having already been dealt with in the context of Article 8. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 74. Relying on Article 14 of the Convention, the applicant complained that the inaction of the authorities might have been based on discrimination against her on account of her Roma origin. 75. The Court observes that the applicant has failed to show that she was treated differently compared to other persons in analogous situations. There is nothing to suggest that the authorities ’ decisions were motivated by discrimination. This part of the application is thus unsubstantiated and should be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. 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 77. The applicant claimed 1,500,000 Hungarian forints ( HUF) [1] in respect of non-pecuniary damage sustained on account of the physical and psychological suffering caused by the violation. 78. The Government found the applicant ’ s claim to be excessive. 79. The Court considers that the applicant must have sustained some non-pecuniary damage and awards her the full sum claimed, that is, EUR 5,150. B. Costs and expenses 80. The applicant did not submit a separate costs claim. C. Default interest 81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court concluded that the Hungarian authorities had failed to fulfil their positive obligations, in violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that, even though the applicant had lodged criminal complaints against her partner for assault, had repeatedly requested restraining orders to be brought against him and had brought civil proceedings to order his eviction from the flat, the authorities had not taken sufficient measures for her effective protection.