Judgment of the ECHR of 11 February 2020 in the case Buturuga v. Romania (application no. 56867/15).
In 2015, the applicant was assisted in preparing an application. The application was subsequently communicated to Romania.
The case has successfully addressed an application about the lack of investigation into the circumstances of domestic violence committed by the applicant's ex-husband. The case violated the requirements of Articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
Referring to the medical report, the applicant applied to the authorities to report the abuse by her husband. As evidence in the criminal case, she demanded an examination of the contents of her family computer, claiming that her ex-husband checked her email addresses and social media profiles, including her Facebook profile, and made copies of her personal conversations, documents and photographs. The applicant's claim was rejected on the grounds that the evidence that could have been obtained in this way was not related to the crimes (threats and violence) of which her ex-husband was accused. Subsequently, the applicant lodged a new complaint against her ex-spouse for violation of the secrecy of correspondence. This complaint was rejected as out of time. The prosecutor's office imposed an administrative fine on the applicant's ex-husband and discontinued the criminal proceedings against him, referring to the provisions of the Criminal Code that punish violence between private individuals rather than domestic violence. The court agreed with the findings of the prosecutor's office that the threats against the applicant did not reach the necessary degree of public danger to constitute a crime and that there was no evidence that the applicant's injuries had been caused by her ex-husband. As regards the alleged violation of the secrecy of correspondence, the court considered that the issue was not relevant to the subject matter of the case and that the data published on social networks was public.
QUESTIONS OF LAW
Compliance with Articles 3 and 8 of the Convention. (a) Investigation into the abuse. The Romanian Government did not examine the circumstances of the case in terms of domestic violence. The investigating authorities did not take into account the particular circumstances of domestic violence specified in the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention). The Court was not convinced that the findings of the Romanian courts in the case had a deterrent effect capable of putting an end to the serious phenomenon of domestic violence. Moreover, although no Romanian authorities disputed the existence and severity of the injuries inflicted on the applicant, the case file did not reveal the identity of the perpetrator. The investigating authorities confined themselves to questioning the applicant's relatives as witnesses and did not collect any other evidence capable of establishing the origin of the applicant's injuries and, if necessary, the identity of the perpetrators. In cases involving alleged acts of domestic violence, the investigating authorities must take the necessary steps to clarify all the circumstances of the case. Accordingly, even if the legal framework that existed in Romania provided the applicant with some form of protection, she came into effect after the alleged violent acts and was unable to correct the shortcomings in the investigation.
(b) Investigation into the violation of privacy of correspondence. In both Romanian and international law, acts of domestic violence are not limited to cases of physical violence, but include, among other things, psychological abuse and harassment. Currently, cyber violence is recognized as one of the aspects of violence against women and girls, which can take various forms, including information violations of the right to respect for private life, hacking the victim's computer, as well as the seizure, transfer and manipulation of data and images, in including an intimate character. Consequently, the Court considers that acts such as observation, access or preservation without any right of a spouse's correspondence may be taken into account when the domestic authorities are investigating domestic violence. Allegations of violation of the privacy of correspondence require the authorities to consider them on the merits in order to be able to assess domestic violence in general and in all its forms.
However, in the present case this issue was not examined on the merits. The Romanian authorities did not follow the procedural steps to collect evidence that would establish the facts or determine their legal qualifications. They approached the issue in an overly formal manner, excluding any connection with the facts of domestic violence, which the applicant had already reported to them, and thus did not take into account the various forms that spousal violence may take on the part of a spouse.
Accordingly, the positive obligations under Articles 3 and 8 of the Convention have not been fulfilled in the case.
There were violations of Articles 3 and 8 of the Convention in the case (adopted unanimously).
Application of Article 41 of the Convention. The European Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage and the claim for pecuniary damage was dismissed.