Failure to protect against domestic violence amounts to gender-based discrimination and torture under European Convention

Eremia v Republic of Moldova [2013] ECHR, Application no. 3564/11 (28 May 2013)

Summary

The Republic of Moldova’s failure to adequately protect a woman and her two daughters from her husband’s violent attacks amounted to a breach of the European Convention on Human Rights. The European Court of Human Rights found Moldova’s inaction amounted to a violation of articles 3 (Torture and inhuman treatment), 8 (Private Life) and 14 (Discrimination).

The case is an important development in the ways in which human rights can be used to tackle systemic issues of gender-based violence and gender discrimination.

Facts

Mrs Lilia Eremia, (applicant) and her two daughters, Doina and Mariana Eremia (daughters) had been victims of domestic violence at the hands of the applicant’s husband since the late 1990s. In August 2010 the applicant began reporting the various assaults to the police. On the first occasion the husband was fined a total of 12.40 Euros. It was only after the fifth reported assault, some of which took place in front of the applicant’s daughters, and on the applicant’s own initiative and request, that a protection order was made. The protection order was never enforced by social services and the husband breached the order on multiple occasions, even coming back to live at the house without permission. Each incident was reported to police and forwarded to the prosecutor’s office, without any real response.

The applicant had also filed for divorce but was told there was a six month waiting period for couples to allow for possible reconciliation. Her request that this waiting period be waived was refused.

In January 2011 the police pressured the applicant to drop her criminal complaint. The police alleged her husband would lose his job if he was convicted and the daughters’ education would be impacted. The prosecutor eventually decided not to initiate a criminal investigation. The next day the husband returned home, assaulted the applicant and threatened to kill her if she did not drop the complaints.

The applicant was eventually invited to meet with social workers who advised her to reconcile with her husband since she was “neither the first nor the last woman to be beaten by her husband”.

In April 2011 the husband admitted at the Office of the Prosecutor that he had physically and psychologically abused his wife and daughters. The husband concluded a plea bargain and asked to be conditionally released from criminal liability. The prosecutor, despite finding substantive evidence of the abuse, held the offence was a “less serious offence”, that the husband had three minors to support, was respected in the community and did not represent a danger to society. The prosecutor then suspended the investigation. The applicant appealed against this decision unsuccessfully, the senior prosecutor holding that suspending the investigation would afford better protection to the applicants.

Law

Moldovan laws protect against family violence, mandating community service or time in prison with the length of time depending on the severity of the violence. A release from criminal liability is only available for less serious offences and where the perpetrator does not represent a danger to society.

The Court reviewed the case under the Convention, in particular:

• Article 3 (Torture and inhuman treatment): No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
• Article 8 (Private and family Life): Everyone has the right to respect for his private and family life, his home and his correspondence.
• Article 3 in conjunction with article 14 (Discrimination): The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex…

Decision

In contrast to previous similar cases, Moldova actually  had legislation in place to protect against domestic violence and punish offenders. However, the Court found that the failure to effectively implement such legislation amounted to a breach of the State’s obligations under the European Convention. It was noted that, given the repeated assaults on the applicant and the blatant disregard of the protection order it was unclear how the prosecutor could conclude the husband was “not a danger to society”. The suspension of the criminal investigation effectively shielded the husband from liability, rather than deterring him from further violence.

The Court held that the assaults, as well as the fear of further ill-treatment, caused the applicant to experience suffering and anxiety amounting to inhuman treatment within the meaning of article 3. Traditionally focused on treatment by public authorities, the Court reiterated that article 3 also requires that authorities conduct effective investigations into alleged ill-treatment even if such treatment is inflicted by private individuals.

The failure to take adequate measures to protect the daughters, traumatised as a result of witnessing their father’s assaults on the applicant, was held to be a breach of the obligations regarding respect for private life under article 8.

Finally, the failure of the judicial system and other government agencies to provide an adequate response to serious domestic violence amounted to gender discrimination under article 14 in conjunction with article 3. The Court remarked that the violence was gender-based and accepted evidence that domestic violence impacted disproportionately and differently upon women. Such violence demands a response which treats it as a form of gender-based discrimination; failure to do so will mean a failure to effectively prevent further abuse. According to the court, the combination of factors, such as failure to investigate, pressure to drop complaint, urging the applicant to reconcile and so on “clearly demonstrates that the authorities’ actions … amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the first applicant as a woman.” 

The Court also took into account the findings of the UN Special Rapporteur on violence against women to come to the conclusion that it was clear the authorities in Moldova did not appreciate the seriousness and extent of the problem of domestic violence in Moldova and its discriminatory effect on women. 

Commentary

Previously, complaints regarding domestic violence have been made primarily under article 8 and respect for private life. In finding that domestic violence also engages both articles 3 and 14 of the European Convention the Court is not only recognising domestic violence as a public and State issue, but developing the jurisprudence to better confront systemic sexism and gender based discrimination.

The Eremia case is the latest milestone in using the Convention and human rights to battle institutional inequality and sexism. The decision confirms that domestic violence can amount to inhuman and degrading punishment, bringing domestic violence firmly out of the private sphere and making it a public and State issue. It has also brought the Convention further towards an ability to counter systemic inequality. Article 14 has not always been seen as capable of dealing with discrimination that doesn’t amount to formal inequality. However, the court accepted evidence that domestic violence affects men and women differently and that the State must recognise the fact that domestic violence is a gender discrimination concern.

The decision has also set a higher threshold for what is considered adequate action against violence against women. While in previous cases the State had not reacted at all to claims of domestic violence, including failure to implement adequate legislation, here the State had actually put in place laws to protect Mrs Eremia and her daughters. However, the Court found the steps and implementation had not been effective. It was not only this failure, but also the fact that the authorities did not fully appreciate the seriousness and extent of the problem of domestic violence in Moldova and its discriminatory effect on women, that was held to amount to a violation of the Convention.

This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-119968

Emily Christie is a DLA Piper Secondee at the Human Rights Law Centre.