State’s duty to protect physical and psychological integrity of individuals
RELEVANT LEGAL FRAMEWORK Relevant domestic lawThe Criminal Code (2002) The Criminal Code (2002) The Criminal Code (2002) 47. Article 125 of the Code, in so far as relevant, reads as follows: Article 125. Intentional minor physical injury “ 1. Intentional minor physical injury shall be punishable by a fine of up to fifty times the non-taxable minimum income for citizens, or up to two hundred hours of community service, or correctional labour for up to one year. ...” The Code of Administrative Offences (1984) 48. The relevant provision of the Code, Article 173-2, as worded at the material time, read as follows: Article 173-2. Act of domestic violence, failure to abide by a restraining order or evasion of a correctional programme “The commission of an act of domestic violence, that is, the intentional commission of any acts of a physical, psychological or economic nature (the use of physical force which does not result in physical pain and does not cause physical injuries; threats; insults; stalking; depriving a victim of his or her dwelling, food, clothes, other effects or funds to which he or she is entitled by law; and so on) which results in or could result in harm being caused to the victim ’ s physical or psychological health, as well as a person ’ s failure to abide by a restraining order issued in respect of him or her, [and] a person ’ s evasion of a correctional programme where that person has committed an act of domestic violence shall be punishable by thirty to forty hours of community service, or administrative detention for up to seven days. ...” The Housing Code (1983) 49. Article 116 of the Code, in so far as relevant, reads as follows: Article 116. Eviction without the provision ... of another dwelling “If the tenant, members of his or her family, or others living with him or her ... systematically ... break the rules on ... living together, making it impossible for the other [people in the dwelling] to live with them in the same flat or house, and if measures of pre-emption and measures involving public pressure have not produced any positive result, those responsible shall be evicted at the request of ... interested persons, without another dwelling being provided for them. ...” Law of Ukraine “On the prevention and combatting domestic violence” (no. № 2229-VIII of 7 December 2017; “The Domestic Violence Act”) 50. The Domestic Violence Act of 2017 entered into force on 7 January 2018, having replaced the preceding Law “ On the prevention of family violence ” (2001). According to Section 5 of the Act, the objectives of the State policy on prevention and combatting domestic violence were defined as follows: “ 1. State policy in the sphere of prevention and combatting domestic violence shall aim to ensure a comprehensive integrated approach towards eradication of domestic violence, provision of comprehensive assistance to the victims and affirmation of non-violent character of private relations. 2. Main directions of the realisation of the State policy for prevention and combatting domestic violence shall be as follows: 1) prevention of domestic violence; 2) effective response to the incidents of domestic violence by way of development of the mechanism of interaction between the authorities exercising power in the sphere of prevention and combatting of the domestic violence; 3) provision of assistance and protection to the victims, ensuring compensation of damage suffered as a result of domestic violence; 4) proper investigation of the incidents of domestic violence, imposition of liability on offenders in accordance with the law and the modification of their conduct.” 51. The Act provided, inter alia, for the creation of a Unified State Register of the incidents of domestic and gender-based violence (Section 16) and stipulated a series of “special measures on combatting domestic violence” for addressing victims ’ complaints. These measures included, in particular, urgent injunctive police order; restraining court order; placement of the offender on the preventive measures record; and placement of the offender into the special corrective programme (Sections 24 – 28). Resolution no. 2 of 12 April 1985 of the Plenary Supreme Court of Ukraine on issues arising in the courts ’ implementation of the Housing Code of Ukraine 52. The Resolution, in so far as relevant, reads as follows: “17. When resolving cases [brought] under Article 116 of the [Housing Code] concerning the eviction of persons who systematically breach the rules on living together and make it impossible for others to live with them in one flat or house, it should be taken into account that where the person in question is guilty of persistent antisocial conduct, the eviction may take place, for instance, after a repeated breach, if pre-emptive measures ( попередження ) or measures involving public pressure have not brought about a positive result. [The measures to take into consideration include]..., in particular, pre-emptive measures applied by the courts, prosecutors, law-enforcement bodies [or] administrative commissions of executive committees, as well as measures involving public pressure applied at the meetings of residents of the apartment block or members of the housing cooperative, ... and [those applied] by other public organisations [operating] at the respondent ’ s place of employment or residence (regardless of whether an express warning has been given concerning a possible eviction). ...” Relevant domestic case-law concerning restraining ordersRuling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19 Ruling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19 Ruling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19 53. In its ruling in the aforementioned case, the Supreme Court noted, in particular, as follows: “In April 2019 [the complainant] instituted proceedings seeking a restraining order on [her former husband]. ... [She] noted that [the respondent] had been subjecting her and their minor child to psychological [and] physical violence manifested through constant threats, intimidation, harassment, application of physical force, as well as interference with their use of [the room in the accommodation hall, in which the three of them resided]. ... [the complainant] requested to issue a restraining order in respect of [the respondent] for the period of six months ... in particular, by enjoining him from interfering with the use of the room [by herself and her minor son] and prohibiting him from accessing [or residing in] ... the aforementioned room. ... When resolving such applications, the courts should comprehensively evaluate all the circumstances and evidence in the case, giving due deference to the rights and interests of the children and the parents, as well as ensuring that no unjustified restriction of the rights of one parent concerning the children takes place in the event that the demands of the other parent are not grounded and not justified. ... In the case at issue it has been established that [the complainant] and [the respondent] are in hostile relations; conflictual situations often arise concerning residence in and the use of the room in the accommodation hall ... [The respondent] stated that he had no intention to let his former spouse ... and their minor son use the room ... Having established these circumstances, the first-instance court, with whose conclusions the court of appeal agreed, had correctly concluded that there are lawful grounds for issuing a restraining order obliging [the respondent] to cease interfering with the complainant ’ s and her minor son ’ s use of the dwelling, as well as household items located therein. Likewise, the lower courts had correctly concluded that there were no grounds for ... prohibiting [the respondent] from accessing [or residing in] the room ..., as [the complainant] had not provided unequivocal proof that [the respondent] had committed domestic violence ...” Ruling of the Supreme Court of Ukraine of 28 April 2020 in case no. 754/11171/19 54. In its ruling in the aforementioned case, the Supreme Court noted, in particular, as follows: “In July 2019 [the complainant] instituted proceedings seeking a restraining order in respect of [her former husband] and alleging that the latter had systematically subjected her and their children to violence and intimidation. Those acts manifested through assaults including physical, psychological and sexual violence. ... ... When deciding on the application of such a measure, the courts ... must assess proportionality of the interference with the rights and freedoms of the individual, taking into consideration that those measures are triggered by the unlawful conduct of [the offender]. Therefore, the conclusion of [the lower courts] that it is not possible to allow the victim ’ s request concerning ... temporary restriction of the right [of the respondent] to [use] the flat of which he is a co-owner ... is erroneous, since it deprives the complainant of the guarantees ... provided by the [Domestic Violence Act]. In the case at issue the [lower] courts ... have concluded that there is high risk of [repeated violence] ... In these circumstances, the judicial panel ... considers that demands of [the complainant] ... to enjoin [the respondent] from staying in the ... flat ... [and] approaching closer than two kilometres to [the flat] should be allowed. ...” Relevant international material 55. A summary of the relevant international material can be found in the case of Volodina v. Russia, no. 41261/17, §§ 51-60, 9 July 2019). 56. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary, national policies against violence based on: the maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, the raising of public awareness, training for professionals confronted with violence against women, and prevention. 57. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and provide for the possibility to take measures in order to, inter alia : enable the judiciary to adopt interim measures aimed at protecting victims; ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas; penalise all breaches of the measures imposed on the perpetrator; and establish a compulsory operating protocol for the police and medical and social services. Material relating to violence against women in Ukraine 58. The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) was signed by Ukraine on 7 November 2011 and has not yet been ratified. On 14 November 2017 Mr N. Muiznieks, the Council of Europe Commissioner for Human Rights, addressed a letter Mr A. Parubiy, the Speaker of the Ukrainian Parliament, inviting him to facilitate the process of the ratification of the Istanbul Convention. The letter read, in particular, as follows: “During my country visits, I have encountered several objections and/or misconceptions about the Convention. Those arguments could be summarised - and countered - as follows : - Objections to the use of the word" gender" for its purported" ideological" connotations. The notion of gender is clearly defined in the Convention, which holds that, while the term" sex" refers to the biological characteristics that define humans as female and male, gender" shall mean the socially constructed roles, behaviours, activities and attributes that a society considers appropriate for women and men ." This definition is also used by the Committee on the Elimination of Discrimination against Women and other UN bodies. This meaning also enters into play in the term" gender stereotypes ". - Some critics acknowledge that violence against women is a problem, but wish to prevent governments from challenging traditional gender roles and stereotypes, due to a cultural affirmation that men and women should play very different roles in public life and within the family. This approach limits women to the stereotypical role of mothers, giving birth and staying at home to rear children. - Others go as far as to argue that the Istanbul Convention should not be ratified because it would endanger societies based on traditional families. I would like to reassure everybody that there is no such danger, as all the measures provided for by the Istanbul Convention reinforce family foundations and links by preventing and combating the main cause of destruction of families, that is, violence. - Another criticism of the Convention concerns its supposedly" unjustified" focus on women, whereas men can also be victims of violence. However, data collected in various CoE member states - including Ukraine - do show that, in the vast majority of cases of domestic violence, it is women who are exposed to violence inflicted by men. More generally, numerous studies show that women and girls are exposed to a higher risk of gender-based violence than men, and that violence specifically targeted at women remains widespread. That being said, the Istanbul Convention recognises that men and children are victims of domestic violence too and that this should also be addressed. The Istanbul Convention aims at eradicating violence against women and domestic violence by prescribing the establishment of a comprehensive system to combat those phenomena effectively. Individual victims, families and society as a whole will all benefit if everyone ’ s fundamental rights to life, security, freedom, dignity, and physical and emotional integrity are respected. I would be grateful if you bring my letter to the attention of all members of the Ukrainian Parliament and I look forward to receiving further information on the ratification process ”. 59. In March 2017, in its concluding observations on the eighth periodic report of Ukraine, the UN Committee on the Elimination of Discrimination against Women (CEDAW), noted, in particular, as follows: “26. The Committee remains concerned at the persistence in political discourse, the media and in society of deep-rooted patriarchal attitudes and discriminatory stereotypes concerning the roles and responsibilities of women and men in the family, which perpetuate women ’ s subordination within the family and society and which are reflected, inter alia, in women ’ s educational and professional choices, their limited participation in political and public life, their unequal participation in the labour market and their unequal status in family relations. The Committee recalls that such discriminatory stereotypes are also root causes of violence against women and expresses concern that, to date, the State party has not taken sustained measures to modify or eliminate discriminatory stereotypes and negative traditional attitudes. ... 29. Recalling its general recommendation No. 19 (1992) on violence against women, the Committee recommends that the State party: (a) ... accelerate the ratification of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence [the Istanbul Convention]; (b) Take comprehensive measures to prevent and address violence against women and girls and ensure that perpetrators are prosecuted and adequately punished; ...” 60. According to the OSCE -led survey on violence against women in Ukraine (2018), most interviewed women were concerned about the issue, with 64% saying it was a common occurrence. Some of the key conclusions and recommendations of the Survey were as follows: “ ...There is a high prevalence of VAW (violence against women), but women are reluctant to report it or to seek help. More than a quarter of women (26%) in Ukraine have experienced physical and/or sexual violence at the hands of a current or previous partner. Two-thirds of women (65%) have experienced intimate partner psychological violence, which is much higher than the EU average of 43% and higher than in any EU country. However, only 7% of women survivors of current partner violence and 12% of survivors of previous partner violence reported their experiences to the police. Considering that 52% of women survivors of intimate partner violence suffered physical consequences as a result of their most serious incident of violence, it is likely that other serious violence is underreported. Women in the qualitative research said that psychological violence is seen as normal, with 26% of women also believing that domestic violence is a private matter. The experts interviewed for this report said that there is a collective tolerance of violence, and women in the survey shared that feelings of shame represent barriers to reporting. In relation to current partner violence, more than four-fifths of women (81%) who identified a most serious incident did not contact the police or any other organization, and the same is true of 67% of women in respect of previous partner violence and of 52% concerning non-partner violence”. 61. The U.K. ’ s Home Office ’ s Country Policy and Information Note on Ukraine concerning gender-based violence (May, 2018) featured, in particular, the following information: “4.2.3. ... Kateryna Levchenko, President of the NGO “La Strada – Ukraine,” presented the statistical data collected from the survey of police and prosecutors, analysis of court decisions on cases of violence against women and domestic violence. 10% of prosecutors, 11% of judges, 12% of police officers justify some cases of family violence. 39% of officers in the criminal justice system consider domestic violence to be a private matter, 60% blame sexual violence on its victims. During judicial proceedings of domestic violence cases 77% of prosecutors, 81% of police officers and 84% of judges consider reconciliation [between] partners and family preservation to be the ... top priority, with violence being underestimated and considered a minor dispute. Courts often consider the cases of violence from a formal point of view. The monitoring of 77 hearings revealed that the average duration of meetings is 4 to 23 minutes. Offenders do not appear in courts. Only every 6th abuser appeared in court. This often results in cancelling the hearings. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 62. The applicant complained that the domestic courts ’ refusal to order O.L. ’ s eviction had exposed her and her children to continuing risk of harassment and violence. She invoked Article 8 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. ...” Admissibility 63. The Government raised no objections concerning the admissibility of the present complaint. 64. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties (a) The applicant (i) Information concerning gender-based violence in Ukraine 65. The applicant submitted that the problem of domestic violence was rampant in Ukrainian society, which displayed a high tolerance for this phenomenon. 66. She noted that according to the 2014 survey conducted by GfK analytics at the request of the United Nations Population Fund (UNFPA), one in five Ukrainian women aged fifteen to forty-nine (19%) experienced physical violence since she turned fifteen years old. Around a half of physical violence victims – 9% - experienced physical violence at least once during the last twelve months preceding the survey. 67. According to the National police press centre, in 2018 the Ukrainian police received 89.5 thousand domestic violence complaints from women. 68. According to the Unified State Register of court judgments, between January and August 2019 court rulings were passed in fifty-eight criminal cases concerning domestic violence. In twenty-three out of these cases, the courts approved a reconciliation agreement between the victim and the accused. In the thirty-five remaining cases, the courts ruled on the merits, imposing the following punishments: imprisonment (two cases); release on probation (five cases); restriction of liberty or short-term detention (seven cases); and public works (twenty cases). In practice, in vast majority of the cases a perpetrator was let to “serve his sentence” at home, where he had a possibility of close contact with the victim, who remained at risk of further violence. (ii) Submissions concerning the applicant ’ s personal situation 69. The applicant submitted that she herself had endured drunken scenes and violent outbursts from O.L. for many years before deciding to seek his eviction, and only after warnings and other measures taken by the authorities in response to individual incidents had not brought about tangible results. She submitted that on some occasions she had withdrawn her complaints against O.L. under pressure; the authorities had not wanted to investigate them and had persuaded her that it was in her own best interests to reconcile with her former husband and close the case. 70. However, as the violent incidents had persisted, eventually the applicant had been forced to apply for O.L. ’ s eviction, as this had been the only effective way to protect the safety and rights of herself and her children. The applicant argued that, in her case, the national courts had failed to strike a fair balance between her and her children ’ s interests on the one side and those of her ex-husband on the other. In particular, the courts had taken an excessively formalistic approach in determining whether O.L. ’ s misconduct had been systematic and in discounting the importance of warnings and other measures issued by the authorities to address his violent outbursts. Likewise, they had not taken into account the fact that O.L. had co-owned another residence and that she was a disabled woman and a single mother having sole custody of four children. The applicant emphasised that the disputed flat had in fact been provided by the municipal authorities for the benefit of the children in the first place and the children ’ s interest to grow in a safe and secure environment was paramount in her case. 71. The applicant next noted that she was thankful to the municipal authorities for giving her and the children an opportunity to become owners of the disputed flat in 2019. However, she had not willingly consented to sharing ownership with O.L. As her eviction claim had not been allowed and he had remained a lawful resident of the flat, under the law, there had been no way to obtain ownership of the flat without his participation. 72. The applicant also submitted that it had taken her some two years to argue her eviction claim before the national courts. The eventual dismissal of that claim after such a significant effort on her part had given O.L. a sense of total impunity, and had exposed her and the children to an even greater risk of repeated psychological harassment and the threat of physical assaults. In this regard, the applicant noted that she had eventually been forced to file a fresh criminal complaint against him and to initiate proceedings for depriving him of parental authority. These proceedings were ongoing at the time when she submitted her observations. (b) The Government 73. The Government alleged that there had been no breach of the positive duty under Article 8 in respect of the applicant. They considered that the domestic authorities had taken all necessary measures to protect her and her children from domestic violence. 74. In particular, the police and social services had responded promptly to her complaints about O.L. ’ s violent outbursts by instituting proceedings, issuing warnings, and offering counseling support. The Government observed that the applicant herself had not complained to the Court about the response of those authorities to her domestic violence allegations, which fact, in their view, implied her acknowledgment that that response had indeed been effective. Moreover, the applicant herself had repeatedly requested to relieve O.L. of liability, withdrew her complaints, and rejected an offer of psychological counseling, thus preventing the competent authorities from exercising their restraining powers. 75. In any event, even assuming that, notwithstanding the above, there was also a positive obligation on the State to put in place a civil remedy, this obligation had been properly discharged. Article 116 of the Housing Code, under which the applicant had lodged her eviction claim against O.L., had, in principle, been an appropriate legal remedy in her case. The applicant had not prevailed in the domestic proceedings because she had not made out her case on the facts. In particular, she had not demonstrated that O.L. had been guilty of persistent and irremediable misconduct of such a severity, that sharing a flat with him had been impossible for her. She had therefore not fulfilled the conditions established by law for setting the eviction mechanism in motion and the Court of Appeal had correctly balanced the applicant ’ s interest in evicting O.L. against his interest in continuing to reside in his home. 76. The Government also noted that after the end of the eviction proceedings, the applicant, O.L. and their children had lodged a joint request with the municipality to be awarded ownership of the disputed flat. In their view, the applicant ’ s and O.L. ’ s cooperation in that matter had demonstrated a further proof that their living together had not been objectively intolerable. The Court ’ s assessment 77. The Court notes at the outset that, as observed by the Government, the applicant in the present case does not complain about the quality of the general response of the national authorities to her domestic violence complaints. She complains only that the domestic courts refused to order the eviction of her former husband, alleging that this refusal exposed her and her minor children to the risk of further victimisation by him (compare and contrast B. v. the Republic of Moldova, no. 61382/09, §§ 31 and 62, 16 July 2013). The Court is therefore not called upon in the present case to examine the quality of the applicable legislative and administrative framework in general. It will essentially focus on the response of the civil courts to the applicant ’ s eviction claim, albeit against a background of successive domestic violence complaints whose existence is not in dispute. 78. The Court reiterates that the issue of domestic violence, which can take various forms – ranging from physical assault to sexual, economic, emotional or verbal abuse – transcends the circumstances of an individual case. It is a general problem which affects, to a varying degree, all member States, and which does not always surface, since it often takes place within personal relationships or closed circuits ( Volodina, cited above, § 71 ). While this phenomenon may most frequently affect women, the Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often its casualties, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case (see Opuz v. Turkey, no. 33401/02, § 132, ECHR 2009). 79. In various cases, depending on the individual circumstances of those cases, the Court has previously taken up the issue of domestic violence under Articles 2, 3, 8 and 14 of the Convention (see, in particular, Talpis v. Italy, no. 41237/14, § 100, 2 March 2017). In all those cases, the Court has established that the authorities have a positive obligation under the Convention to put in place and apply an adequate legal framework affording effective protection against acts of domestic violence (see, among other authorities, Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; A. v. Croatia, no. 5 5164/08, § 60, 14 October 2010; and Hajduová v. Slovakia, no. 2660/03, § 46, 30 November 2010 ). 80. In this connection, the Court has held, in particular, that where an individual makes a credible assertion of having been subjected to repeated acts of domestic violence, however trivial the isolated incidents might be, it falls on the domestic authorities to assess the situation in its entirety, including the risk that similar incidents would continue (see, mutatis mutandis, Irina Smirnova v. Ukraine, no. 1870/05, §§ 71 and 89, 13 October 2016 ). Among other things, this assessment should take due account of the particular vulnerability of victims – who are often dependent on their assailants emotionally, economically, or otherwise – and the psychological effect that the risk of repeated harassment, intimidation and violence may have on their everyday life (see, mutatis mutandis, Hajduová, cited above, § 46 and Irina Smirnova, ibid.). Where it is established that a particular individual has been systematically targeted and future abuse is likely to follow, apart from responses to specific incidents, the authorities may be called upon to implement an appropriate action of a general nature to combat the underlying problem and prevent future ill-treatment (see Đorđević v. Croatia, no. 41526/10, §§ 92-93 and 147-49, ECHR 2012; and Irina Smirnova, cited above, ibid.). 81. The applicant in the present case made credible assertions that over a prolonged period of time she had been exposed to physical assaults, intimidation and threats from O.L., her former husband, with whom she still shares a flat. These events affected her physical and mental integrity, and they therefore pertain to the sphere of private life within the meaning of Article 8 of the Convention (compare to Hajduová, cited above, § 49; Eremia v. the Republic of Moldova, no. 3564/11, § 73, 28 May 2013; and B. v. Moldova, cited above, § 71 ). They likewise affected her right to the enjoyment of a home free from violent disturbance also protected under Article 8 (see, in particular, Kalucza v. Hungary, no. 57693/10, § 59, 24 April 2012 ). 82. The Court takes note of the fact that the authorities, which were well aware of the situation, intervened in individual incidents on a number of occasions. It further observes that the applicant, who considered that those measures had not resolved the situation, lodged a civil action under Article 116 of the Housing Code, which provides for the possibility to evict tenants in social housing for systematic misconduct. Regard being had to the particular facts of the present case, the wording of Article 116, and the Government ’ s explanations, the Court considers that this civil remedy was capable, in principle, of redressing the essence of the applicant ’ s complaint, although it is not apparent that, unlike a restraining order, it could be effective as a matter of urgency (compare and contrast Irina Smirnova, cited above, §§ 95-99 ). 83. The Court also notes that the Rivne Town Court, which examined the applicant ’ s claim at first instance, did in fact rule in her favour. Subsequently, the above ruling was reversed in appeal proceedings, essentially on the basis that O.L. ’ s eviction would constitute a disproportionate interference with his right to respect for his home (see paragraph 37 above). The main issue for the Court in the present case is therefore determining whether this ruling achieved a fair balance between the competing interests at stake (see, mutatis mutandis, Pfeifer v. Austria, no. 12556/03, § 38, 15 November 2007, and B. v. Moldova, cited above, § 73). At this juncture, the Court reiterates that it is primarily for the national courts to resolve problems of interpretation of domestic legislation, and the Court is not in a position to take their place in this matter (see Söderman, Söderman v. Sweden [GC], no. 5786/08, § 102, ECHR 2013, and Bălşan v. Romania, no. 49645/09, § 67, 23 May 2017 ). However, while granting substantial deference to the national courts in the choice of appropriate measures, the Court is obliged to review their conclusions from the viewpoint of the Convention (see, mutatis mutandis, Valiulienė v. Lithuania, no. 33234/07, § 76, 26 March 2013 ). 84. The Court has earlier indicated in its case law that eviction is the most extreme measure of interference with one ’ s right to respect for the home guaranteed by Article 8 of the Convention (see, among other authorities, Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, § 41, 2 December 2010 ). However, it has also stated that interference by the national authorities with individual rights under Article 8 might be necessary in order to protect the health and rights of the others (see, among other authorities, mutatis mutandis, Opuz, cited above, § 144; Eremia, cited above, § 52; and Volodina, cited above, § 86). Moreover, in context of Article 2 the Court has noted that, in domestic violence cases, perpetrators ’ rights cannot supersede victims ’ human rights, in particular, to physical and mental integrity (see, mutatis mutandis, Opuz, cited above, § 147, and Talpis, cited above, § 123). 85. Regard being had to the Government ’ s argument that Article 116 of the Housing Code constituted, in principle, an effective remedy for the applicant ’ s complaint, in the present case, from the perspective of the Convention, the national courts, confronted with the applicant ’ s assertions that O.L. had recurrently engaged in violent outbursts during household arguments, were bound, in the context of the eviction proceedings lodged under the aforementioned provision, to assess the credibility of her statements and the risk of future violence, in the event that the parties remained living under the same roof. It is not apparent from the material before the Court that a comprehensive assessment of those elements had been performed either by the Court of Appeal or the Supreme Court. 86. In particular, as appears from the Court of Appeal ’ s ruling, it acknowledged that certain misconduct had indeed taken place and even found it appropriate to “warn [O.L.] that he needs to change his attitude ...” (see paragraph 39 above). However, although criminal and administrative proceedings had been instituted against O.L. on account of physical assaults against the applicant and although the police authorities had conducted “pre-emptive conversations” with him and issued him “warnings” on a number of occasions, the court seized of the eviction request found that “it had not been demonstrated that [O.L. had] systematically breached the rules on living together” (see paragraph 39 above; compare to B. v. Moldova, cited above, § 74). The Court reiterates at this point that where the domestic authorities are confronted with credible domestic violence assertions, it falls on them to assess the situation in its entirety including the risk of future violence. As transpires from the reports of the social workers and the police, O.L. repeatedly evaded their efforts to discuss the situation with him in an attempt to find an appropriate solution and prevent the risk of further violent outbursts (see paragraphs 2 6 and 28 above). It is not apparent that the Court of Appeal took this into account and attempted to analyse whether there had been risk of recurrent violence. 87. It essentially referred to the fact that O.L. had never been subjected to a formal penalty, without attempting to analyse the underlying reasons for this, including instances where the authorities had failed to follow up on the reported incidents (see paragraphs 10, 11, 18, and 2 4 above) or where the applicant had withdrawn her complaints concerning acts which could have constituted serious offences (see paragraphs 18 and 3 2 above). The Court would note at this point that due to specificity of domestic violence, withdrawal of complaints by victims is a recurrent phenomenon (see, in particular, Opuz, cited above, §§ 138-39; Volodina, cited above, § 99; and B. v. Moldova, cited above, § 54). It considers that such withdrawal should not relieve the national authorities of a duty to assess the gravity of the situation with a view to seeking an appropriate solution. Moreover, automatic reliance on the fact that the alleged victims have withdrawn their complaint, without a comprehensive analysis of the risks they continue to live with, is incompatible with States ’ duty to take into consideration the vulnerability of the victims of domestic violence when discharging their positive obligations in that area under Articles 3 and 8 of the Convention. 88. The Court next observes that, as appears from the case file, O.L. and the applicant were provided with the disputed social flat in connection with the birth of their daughters. After the divorce, the applicant alone was granted custody of the children. O.L., for his part, repeatedly failed to pay child support and school and social workers indicated that he was emotionally disengaged from their upbringing. The children, who repeatedly witnessed his arguments with the applicant, were reported to be seriously distressed (see paragraphs 26 and 29 above). It is not apparent from the ruling of the Court of Appeal that it considered the impact of those circumstances on the validity of O.L. ’ s continuing interest in keeping the social tenancy or analysed how his violent conduct towards the applicant affected the best interests of the children. 89. The Supreme Court, in turn, dismissed the applicant ’ s appeal against the ruling of the Court of Appeal, endorsing its analysis. 90. In the light of all the factors detailed above, the Court considers that in dismissing the applicant ’ s eviction claim against O.L. brought under Article 116 of the Housing Code, which, as explained by the Government, was in principle a suitable legislative solution for her case, the domestic judicial authorities did not conduct a comprehensive analysis of the situation and the risk of future psychological and physical violence faced by the applicant and her children. It also notes that the proceedings lasted over two years at three levels of jurisdiction, during which the applicant and her children remained at risk of further violence (compare with Bevacqua and S ., cited above, § 76). The fair balance between all the competing private interests at stake has therefore not been struck. The response of the civil courts to the applicant ’ s eviction claim against her former husband has accordingly not been in compliance with the State ’ s positive obligation to ensure the applicant ’ s effective protection from domestic violence. 91. There has therefore been a breach of Article 8 of the Convention in the present case. ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE CONVENTION 92. Relying on Articles 6 and 13 of the Convention, the applicant also complained that the judgments of the Court of Appeal and the Supreme Court in her case had not provided an adequate response to her essential argument concerning the likelihood of her and her children being exposed to the risk of domestic violence in the event that they had to remain living with O.L., and that in view of the manner in which the domestic courts had interpreted and applied domestic law in her case, she had had no effective remedy for her grievances under Article 8 of the Convention. 93. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 8 of the Convention, the Court considers that it has examined the main legal question raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaints (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 94. 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.” Damage 95. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. She alleged that this amount would enable her to buy a separate flat and finally separate from O.L. 96. The Government argued that this claim was exorbitant and unsubstantiated. 97. The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation of Article 8 in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 98. The applicant also claimed EUR 2,000 for legal fees and EUR 80 for administrative expenses incurred by her lawyer, Mrs N. Bukhta, in connection with her representation before the Court. She requested that these payments be transferred to her representative ’ s account directly. In support of this claim, the applicant submitted a copy of the contract signed by her and Ms N. Bukhta for her representation in the proceedings before the Court, dated 1 February 2019. It stipulated that after the completion of the proceedings the applicant was to pay Mrs Bukhta EUR 50 for each hour of work, and an additional sum of 4% of the amount due for work done, for administrative and postage expenses; however, the total amount was not to exceed the Court ’ s award for costs and expenses. The applicant also submitted a time sheet completed by Mrs Bukhta in respect of the work done, which stated that Mrs Bukhta had worked on the case for forty hours. 99. The Government invited the Court to reject the claim for legal fees, as the applicant had not actually incurred the above expenses. They further submitted that the claim for administrative and postal expenses was not supported by any postage receipts or other appropriate documentary evidence. 100. In the light of the Court ’ s settled case-law (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 115-17, 7 November 2013), the Court considers it reasonable to award the applicant, who was also granted EUR 850 in legal aid, EUR 1,150 in respect of legal fees, to be transferred directly to her representative ’ s account, as indicated by the applicant. Default interest 101. 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 held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the response of the civil courts to the applicant’s eviction claim against her former husband had not been in compliance with the State’s positive obligation to ensure the applicant’s effective protection from domestic violence. The Court considered in particular that the domestic judicial authorities had not conducted a comprehensive analysis of the situation and the risk of future psychological and physical violence faced by the applicant and her children. Furthermore, the proceedings had lasted over two years at three levels of jurisdiction, during which the applicant and her children remained at risk of further violence. The fair balance between all the competing private interests at stake had therefore not been struck.