When authorities close their eyes to domestic violence against women they violate fundamental provisions of the ECHR
Bălșan v. Romania 23-5-2017 (no. 49645/09)
Domestic violence. Complaints and indifference from the authorities. Inhuman and degrading treatment. Discrimination based on sex. The applicant had four children from her marriage, but her husband was violent towards her and her children during the marriage. The violence was intensified in 2007 during their divorce and continued in 2008, when the divorce was issued. She was assaulted by her husband eight times in all the time, suffered physical abuse and damage, which was certified by medical reports and which indicated that the applicant had to receive medical treatment from two to ten days.
She reported the incidents of violence to the authorities, but the courts acquitted her husband. During criminal investigations and court proceedings, the applicant continued to draw the attention of the authorities to the abusive conduct of her husband, warning them that she was afraid for her life. However, no specific measures were taken.
The Court found that the physical violence Ms Bălşan had repeatedly suffered by her husband and the injuries caused to her, as documented in medical and police reports, were sufficiently serious to meet the required level of seriousness under Article 3.
The Court found that the manner in which the authorities had dealt with Ms Bălşan’s complaints did not provide her with adequate protection against the violence of her husband in breach of Article 3.
The ECtHR also considered that the violence against Mrs Bălşan was due to her gender, which is a form of discrimination against women. Consequently, there has been a violation of Article 14 in conjunction with Article 3.
The applicant, Angelica Camelia Bălșan, is a Romanian national who was born in 1957 and lives in Petrosani (Romania).
Ms Bălșan married in 1979 and had four children. According to Ms Bălșan, her husband was violent towards her and their children throughout their marriage. The violence intensified in 2007 during their divorce proceedings and continued into 2008 when the divorce was finalised. She was assaulted by her husband in total eight times in this period, and sustained injuries recorded in medical reports as requiring between two to a maximum of ten days’ medical care.
In the period 2007-2008 Ms Bălșan asked for assistance by way of emergency calls to the police, petitions to the head of police for protection and formal criminal complaints. As concerned the latter, it was considered, both at the investigation level and before the national courts, that she had provoked the domestic violence and that it was not serious enough to come under the scope of the criminal law. Thus, as concerned the three incidents which occurred in 2007 the courts ultimately decided to acquit her husband of bodily harm; and as concerned the five incidents in 2008, the prosecuting authorities decided not to press charges. Her husband was given an administrative fine following each of these decisions. During the criminal investigations and the court proceedings Ms Bălșan continued to bring to the authorities’ attention her husband’s abuse, warning them that she feared for her life. No concrete measures were however ever taken and her requests that the courts order protective measures went unanswered.
THE DECISION OF THE COURT
Article 3 (prohibition of inhuman and degrading treatment)
The Court considered that the physical violence to which Ms Bălșan had been repeatedly subjected by her husband and her resulting injuries, as documented in medical and police reports, had been sufficiently serious to reach the required level of severity under Article 3 of the Convention.
The Romanian authorities had moreover to have been well aware of that abuse, given Ms Bălșan’s repeated calls for assistance to both the police as well as the courts. The authorities had therefore been under an obligation to take all reasonable measures to act upon her complaints and prevent the assaults from happening again. Indeed, there was a legal framework in Romania with which to complain about domestic violence and to seek the authorities’ protection, and Ms Bălșan had made full use of it.
However, the Court concluded with grave concern that the authorities had found that Ms Bălșan had provoked the domestic violence against her and considered that it was not serious enough to fall within the scope of the criminal law. Such an approach, taken in a case where the domestic violence had not been contested, had deprived the national legal framework of its purpose and was inconsistent with international standards on violence against women and domestic violence in particular.
Furthermore, despite the fact that Ms Bălșan had continued to complain of further abuse throughout the related proceedings, the authorities had not apparently taken any measures to protect her. The only sanctions imposed, administrative fines, had been an ineffective deterrent against further abuse.
The Court therefore found that the manner in which Ms Bălșan’s complaints had been dealt with by the authorities had not provided her with adequate protection against her husband’s violence, in violation of Article 3.
Article 14 (prohibition of discrimination)
The Court noted official statistics showing that domestic violence in Romania was tolerated and perceived as normal by a majority of people. Furthermore, the general population might not be sufficiently aware of the extensive legal and policy framework in Romania for the elimination of discrimination against women and women themselves might not be aware of their rights. Nor apparently did the authorities fully appreciate the seriousness and extent of domestic violence in Romania, as borne out in the current case by their failure to apply the relevant legal provisions. That passivity reflected a discriminatory attitude towards Ms Bălșan as a woman.
The Court therefore considered that the violence to which Ms Bălșan had been subjected had been gender-based violence, which is a form of discrimination against women. Despite the Government’s adoption of a law and national strategy on preventing and combating such abuse, the overall unresponsiveness of the judicial system and the impunity enjoyed by aggressors, as found in Ms Bălșan’s case, indicated that there had been insufficient commitment to address domestic violence in Romania.
Consequently, there had been a violation of Article 14, read in conjunction with Article 3.
Article 41 (just satisfaction)
The Court held that Romania was to pay Ms Bălșan 9,800 euros (EUR) in respect of non-pecuniary damage.