Courts while examining communication rights, custody and domestic violence cases must conduct a thorough inquiry into the best interests of the children
JUDGMENT
Luca v. Moldova (app. no. 55351/17) and Bîzdîga v. Moldova (app. no. 15646/18) 17.10.23
SUMMARY
Ms Luca’s case concerned allegations that the authorities had failed to protect her from domestic
violence – which on one occasion had led to eight days’ hospitalisation – and to help her maintain
her relationship with her children when domestic violence proceedings had been initiated and they
had left to live with their father.
Mr Bîzdîga’s case concerned restrictions on his right to contact with his child and his inability to
obtain custody. The courts had given custody to the child’s mother and despite new circumstances
in the case Mr Bîzdîga had been unable to obtain a court ruling on his request to change that.
Furthermore, the child protection authority had issued a visiting schedule, which Mr Bîzdîga
considered disproportionately limited. Before the Court, it was revealed that the limitation of visiting
rights had been due to previous allegations of domestic abuse against Mr Bîzdîga.
The Court found in particular that in Ms Luca’s case the authorities had not acted sufficiently to help
her maintain contact; that they had failed to investigate her allegations of domestic violence; and
that they had not done so owing to their prejudice against women in her situation.
The Court found in Mr Bîzdîga’s case that the decision-making process leading to the decisions on his
contact rights had not been fair; and that in rejecting his case, they had denied him access to a court
to make his case as new information came to light.
PROVISIONS
Article 3
Article 8
Article 14
PRINCIPAL FACTS
The applicants, Lilia Luca and Vadim Bîzdîga, are Moldovan nationals who were born in 1978 and
1989 and live in Chișinău and Trinca (Republic of Moldova) respectively.
Ms Luca
Ms Luca had two children with A.I. in 2006 in Italy. According to Ms Luca, from about 2015, following
their return to Moldova, A.I. subjected her to several incidents of physical abuse, verbal abuse,
harassment and emotional abuse.
In August 2016 a protection order for her and the children was issued, stating that A.I. had to refrain
from contact with them. However, she later alleged to the police that he had broken the terms. No
investigation was opened. When she sought an extension of the protection order, including
submitting that A.I. had cut off her water supply, the national courts rejected the application.
In November of that year A.I. attacked Ms Luca, causing bruising all over her body including her
head. A protection order was again rejected. On appeal, the Chișinău Court of Appeal concluded that
she had not been subjected to physical or psychological violence.
In the meantime, in July 2016, Ms Luca made a criminal complaint against A.I., alleging physical
abuse. He was given an administrative fine by the police, but no investigation was opened at that
time. Investigations into two other allegations against A.I. by Ms Luca – including domestic violence
– were opened at a later stage, with A.I. ultimately being convicted and given a suspended prison
sentence and ordered to pay damages.
In August 2016 Ms Luca’s children moved in with A.I. and contact ceased. She sought help, but the
child-protection authority refused to issue a contact schedule. She went to the courts and obtained a
contact-schedule order, but allegedly A.I. refused to abide by it.
They divorced in March 2022.
Mr Bîzdîga
In 2015 Mr Bîzdîga had a child with his then wife, C. However, in November of that year C. left their
home with the child.
In March 2016 a protection order was issued against Mr Bîzdîga owing to several incidents of
psychological violence against C. They divorced in June of that year, with C. being awarded custody
of their child.
Mr Bîzdîga sought a contact arrangement, alleging that he had been prevented from seeing the child
by C. and her family. The Hâncești Child Protection Department approved a schedule of two hours’
contact per week at the child’s home. In proceedings before the Court, it was revealed that, despite
the absence in its text of any reference to domestic violence, that decision took into account
allegations of violence against Mr Bîzdîga, a previously issued protection order, and a psychological
evaluation of C. that stated she had experienced trauma from physical and psychological violence.
Contact was later extended to four hours per week on appeal. In November 2016 Mr Bîzdîga brought
proceedings for more contact hours before the courts, without success at three levels of jurisdiction.
After several incidents in which he was unable to see his child, he complained to the child-protection
authorities. In December 2017 he unsuccessfully sought a change of custody before the national
courts.
THE DECISION OF THE COURT…
Article 8 (Ms Luca and Mr Bîzdîga)
The Court reiterated that although Article 8 contains no explicit procedural requirements, the
decision-making process had to be fair and had to respect the parties’ interests, including parents’
making their case. National courts, in general, had to conduct an in-depth examination of the entire
family situation, particularly the factual, emotional, psychological, material and medical factors, and
to make a balanced assessment of the respective interests of each person, with a constant concern
for determining what would be the best solution for the child.
In Ms Luca’s case, the Court reiterated that the obligation on the authorities in such situations was
not to force results in terms of family relationships, but to use the means at their disposal to help
that process and to maintain parent-child contact. Here, the Moldovan authorities had failed to take
into account the domestic violence she had suffered as part of their decision-making process, and
had also failed to act promptly to ensure she would be able to maintain contact with her children,
leading to a violation of Article 8.
In Mr Bîzdîga’s case, the Court was not satisfied that the decision-making process leading to
restrictions on his contact rights had been reasonable, fair and sufficiently expedient. In particular, it
held that the alleged history of domestic violence was a relevant and mandatory factor to be
weighed in the assessment of domestic authorities when deciding on contact rights. However, the
domestic decisions do not appear to have given consideration to this factor and, therefore, did not
allow Mr Bîzdîga a fair chance to make his case.. Overall, there had been a violation of Article 8.
Article 3 and Article 14 in conjunction with Article 3 (Ms Luca)
Noting, in particular, the physical violence Ms Luca had suffered, and the psychological impact, the
Court considered that her ill-treatment had been sufficiently serious to prompt official action.
The Court was satisfied that Moldovan law provided for the prosecution of alleged domestic
abusers. However, the authorities had failed to carry out a proactive assessment of the risk to
Ms Luca. In particular, the Court noted the failure to issue protection orders on the grounds that A.I.
had not been convicted in a final judgment; their assessment that psychological violence had fallen
outside the scope of domestic-violence proceedings; and the discrepancy between the national
courts’ findings in the civil and criminal proceedings. Overall, there had not been an adequate
preventative response to Ms Luca’s complaints of domestic violence.
The State had also had a duty to investigate properly any credible claims of domestic violence by Ms
Luca. In this the authorities had also failed. They had dismissed her credible claims of psychological
and physical violence in 2016, and not ensured prompt prosecution.
Overall there had been a violation of Article 3 owing to both the failure to protect Ms Luca from
domestic violence and the failure to adequately investigate her allegations.
The Court found that the failures in the treatment of Ms Luca by the authorities had not been an
isolated failure, but instead had been reflective of a discriminatory attitude towards Ms Luca as a
woman. It noted, in particular, the language used by the authorities in this case, which seemed to
reflect stereotypes and myths around women “abusing the system”.
The Court therefore also found a violation of Article 14 in conjunction with Article 3.
Article 6 (Mr Bîzdîga)
The Court reiterated that all litigants should have an effective judicial remedy enabling them to
assert their civil rights. The Court noted that in this case the Moldovan courts had not genuinely
examined the admissibility of Mr Bîzdîga’s application before them, and then had not provided
reasons for their rejection. They had thereby deprived him of the possibility to make a case for
custody as new facts came to light. Mr Bîzdîga had therefore suffered a disproportionate restriction
on his right of access to a court, in violation of Article 6 § 1 of the Convention.
Just satisfaction (Article 41)
The Court held that the Republic of Moldova was to pay Ms Luca 14,250 euros (EUR) in respect of
non-pecuniary damage and EUR 3,840 in respect of costs and expenses; and to pay Mr Bîzdîga
EUR 5,900 in respect of non-pecuniary damage and EUR 3,500 in respect of costs and expenses.
