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SECOND
SECTION
CASE OF KALUCZA v. HUNGARY
(Application
no. 57693/10)
JUDGMENT
STRASBOURG
24
April 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kalucza v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Isabelle
Berro-Lefèvre,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 3 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57693/10) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Ms Matild Kalucza (“the
applicant”), on 25 September 2010.
- The
applicant was represented by Ms G. Zsemlye, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
- The
applicant complained that the authorities had failed to respect her
rights under Articles 2, 3 and 8 of the Convention insofar as they
did not comply with their positive obligations, as a result of which
she was forced to live with a person who constantly abused her
physically and psychologically.
- On
31 May 2011 the application was communicated to the Government under
Articles 8 and 13 of the Convention. It was also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Budapest.
A. Background of the case
- In
July 2000 the applicant and her husband bought a flat which was part
of an undivided shared property with one lot register number. Two
thirds of the flat were registered in the applicant’s name and
the rest in her husband’s name. Upon their subsequent divorce,
an agreement was concluded by the applicant and her former husband on
the division of the matrimonial property. According to this
agreement, the applicant was to acquire the entirety of the property
by buying his part of the flat.
- In
April 2005 the applicant entered into an unregistered partnership
with Mr. Gy.B. He paid the former husband’s share of the
apartment, and later officially acquired ownership of this part of
the flat by virtue of a sales agreement concluded with the former
husband on 17 January 2006.
- Gy.B.
made certain renovations to the property, creating two separate
apartments. While the work was being carried out, the applicant moved
into Gy.B.’s house with her children. She left him several
times, after which she always returned to him.
- In
March 2006 the applicant moved back into her apartment. Gy.B. had his
own keys to the flat and slept there regularly. Later, on an
unspecified date, he moved into the apartment to live with the
applicant. Upon his request, the Central Document Bureau registered
his place of residence at the applicant’s address on 24
November 2006.
- Barring
some short periods of separation, their relationship lasted until
about January 2007. Following this date, however, Gy.B. continued to
stay in the jointly owned apartment against the applicant’s
wishes.
- On
5 April 2007 Gy.B. sold his part of the flat to a third party.
However, he later initiated proceedings against the buyer,
challenging the validity of the sales agreement. These proceedings
are still pending (see paragraph 28 below).
B. Alleged assaults by Gy.B.
- Meanwhile,
the relationship between the applicant and Gy.B. deteriorated,
resulting in regular disputes involving mutual verbal and physical
assaults.
1. Events of 27 October 2005
- A
medical report dated 27 October 2005, the first in the case, notes
contusions of the applicant’s left ring-finger, left lower arm
and left ankle. On 1 February 2008 the Budapest XX/XXI/XXIII District
Court established that these injuries had been the result of assaults
initiated by the applicant, to which Gy.B.’s reaction was
considered lawful self-defence. It found the applicant guilty of
disorderly conduct and released her on parole. This judgment became
final in the absence of an appeal.
- Between
this event and August 2010, twelve more medical reports were
delivered, all of which recorded contusions, mostly on the
applicant’s head, face, chest and neck, with an expected
healing time of eight to ten days.
2. Criminal proceedings against Gy.B. for alleged rape
- On
8 December 2006 the applicant filed a criminal complaint against
Gy.B. for rape. On 16 April 2008 he was acquitted by the District
Court. It found that the applicant’s allegations were not
credible and therefore Gy.B.’s guilt could not be established
with the required certainty. This judgment became final in the
absence of an appeal.
3. Events of 25 June 2007
- A
medical report of 25 June 2007 states that the applicant’s left
little finger had been violently broken, with a healing time of six
to eight weeks. In connection with this event, criminal proceedings
were initiated against both the applicant and Gy.B. On 19 May 2009
the District Court found Gy.B. guilty of assault, and the applicant
guilty of grievous bodily harm. Gy.B. was released on parole for one
year, the applicant for three years. No appeal was filed against this
judgment. According to the findings of fact, Gy.B. had started
verbally insulting the applicant and then assaulted her. The police
had intervened and called on Gy.B. to cease the assault. However, as
soon as the police had left, he had continued beating the applicant.
The following day the dispute had continued with mutual insults.
Gy.B. had poured water on the applicant, who had picked up a kitchen
knife and lightly stabbed it in the air several times in Gy.B.’s
direction. In self-defence, Gy.B. had grabbed the blade of the knife.
The applicant had nevertheless pulled it out from his hand, cutting
his hand and causing him an injury with a healing time of eight to
twelve weeks.
4. Criminal proceedings against Gy.B. for alleged
assault, request for restraining order
- On
22 April 2008 the applicant lodged a criminal complaint against Gy.B.
for assault before the District Court. On 11 June 2008 the court
held a reconciliatory meeting where she further requested the
District Court to issue a restraining order against him due to the
regular abuse. On 18 December 2008 a hearing was scheduled
concerning the request for a restraining order. However, the
applicant did not attend due to a public transport strike planned for
that day. The first hearing finally took place on 10 April 2009.
The following hearing was to be held on 12 October 2009. However, it
was postponed upon Gy.B.’s request. On 8 January 2010 the
District Court finally delivered a decision concerning the request
for a restraining order. In its reasoning, the court stated:
“... There were, or are, five sets of criminal
proceedings pending before this court between the accuser and the
accused. In the course of the proceedings conducted so far, the court
has established that the bad relationship which has developed between
the parties can be imputed to both parties. ... The court heard both
the accuser and the accused at the preparatory hearing, established
that the conditions set down by the law had not been met, and
therefore dismissed the accuser’s request. ...”
- This
decision was upheld on appeal by the Budapest Regional Court on 18
February 2010. According to the court:
“... The reasons for the first-instance court’s
decision are correct. Section 138/A(2) clearly defines the conditions
where restraint, as a coercive measure, may be ordered. These
circumstances were examined one by one and quite thoroughly by the
first-instance court, which came to the conclusion that the
conditions for a restraining order had not been met. The
second-instance court agrees with these reasons and therefore upholds
the decision. ...”
The
criminal proceedings against Gy.B. for assault are still pending
before the first-instance court.
5. Criminal proceedings against Gy.B. for alleged
harassment
- On
11 June 2008 the Budapest XX/XXI/XXXIII District Prosecutor’s
Office discontinued the investigations initiated against Gy.B. for
harassment. According to the applicant’s criminal complaint, he
was jealous and had threatened to kill her and anyone she let into
the flat. She also claimed that on several occasions he had tried to
suffocate her with a pillow. The Prosecutor’s Office
established that there was animosity between the parties and that the
applicant’s allegations alone were not sufficient to prove the
commission of any crime.
6. Events of 18 December 2009
- According
to the applicant, on 18 December 2009 Gy.B. inflicted contusions on
her back, chest and wrist in the course of a fight. On that day, she
lodged a criminal complaint against him with the Budapest XX/XXIII
District Police Department for insult and assault. Criminal
proceedings against an unknown individual were initiated for grievous
bodily harm. However, on 14 July 2011 the investigation was
discontinued, as a forensic medical report established that the
injuries were not serious enough.
7. Criminal complaint for alleged assaults in December
2009 and January 2010
- On
7 January 2010 the applicant lodged another criminal complaint
against Gy.B. for several alleged assaults committed in December 2009
and January 2010. Gy.B.’s psychiatric examination was ordered.
Due to his lack of co-operation, the expert could not form an opinion
about his mental state. These investigations are pending.
8. Criminal proceedings against Gy.B. for alleged
assault
- On
12 January 2010 the District Court acquitted Gy.B. of the charges of
assault allegedly committed on 3 October 2007, in the absence of
sufficient evidence. This judgment was upheld on appeal by the
Regional Court on 1 June 2010.
9. Events of 15 and 26 April 2010, second request for a
restraining order
- A
medical report of 15 April 2010 records that the applicant suffered
brain concussion and lost consciousness following physical abuse
resulting in injuries with a healing time of ten to twelve days. She
was kept in hospital for two days. Following this event, another
dispute arose between the cohabitees, leading to assault on 26 April
2010.
- On
3 May 2010 the applicant therefore lodged another criminal complaint
with the District Police Department against Gy.B., who also lodged a
criminal complaint in connection with the same events. The cases were
joined. On the same day the applicant also requested the court to
issue a restraining order in respect of Gy.B. based on section 138/A
of the Code of Criminal Procedure. The request for a restraining
order was dismissed on 10 June 2010. According to the reasoning:
“... At the preparatory hearing the court heard
both the accused and the accuser and established that the conditions
set by law – in particular the phrases “particularly
in view of the nature of the criminal act ... and the
relationship between the accused and the aggrieved party”
[sic] had not been met, therefore the accuser’s request
was dismissed.”
- The
Regional Court upheld the first-instance decision on 16 July 2010.
It found:
“... Several criminal proceedings were initiated
or are pending against the parties, and the inobservance of
cohabitation rules is typical in respect of both parties. No evidence
has arisen in the present proceedings that the proceedings would be
hampered by [Gy.B.] influencing or intimidating
the aggrieved party. The risk of recidivism is supported in
respect of both parties by the previous proceedings, but the ordering
of a coercive measure only in respect of one party – in the
present case against Gy.B. – is not justified due to the
involvement of the aggrieved party. ...”
- The
District Court delivered judgment on 6 July 2011. It found both
the applicant and Gy.B. guilty of assault and ordered them to pay a
fine. It established that on the first occasion it had been the
applicant who had initiated the assault and Gy.B. had acted in
legitimate self-defence. On the second occasion, it had been Gy.B.
who had initiated the fight and the applicant had acted in legitimate
self-defence.
10. Overview of criminal proceedings
- In
sum, the applicant requested the help of the authorities on many
occasions, lodging criminal complaints for assault and harassment.
Gy.B. also lodged several criminal complaints against the applicant.
On
four occasions, Gy.B. was acquitted of the charges (see paragraphs
13, 15, 22 and 26 above). On five occasions the applicant did not
wish to continue the proceedings or failed to prosecute privately and
the court thus discontinued them. Gy.B. was found guilty of assault
on two occasions (see paragraphs 16 and 26 above), released on parole
and ordered to pay a fine. Two other sets of criminal proceedings for
assault are pending against him (see paragraphs 18 and 21 above).
The
applicant was also found guilty on several occasions (see paragraphs
13, 16 and 26 above) of disorderly conduct, grievous bodily harm and
assault, respectively. Three investigations against her – for
grievous bodily harm, harassment and theft – were discontinued.
Criminal proceedings for trespass are pending against the applicant
(see paragraph 35 below).
C. Action taken to order Gy.B. to leave the apartment
- On
3 November 2005 Gy.B. initiated civil proceedings before the Regional
Court against the applicant, requesting the court to acknowledge the
renovation and building he had carried out in the apartment. Upon his
request, the proceedings were suspended on two occasions, from
January 2006 until June 2006 and from 30 April 2008 until 19 November
2008, pending the outcome of separate proceedings initiated against
third parties for the annulment of the sales agreement. The
applicant’s appeal against the suspension was dismissed on 19
November 2008.
- Meanwhile,
on 9 August 2006 the applicant initiated civil proceedings against
Gy.B. before the District Court, requesting the court to establish
the ownership of the apartment. On 2 March 2007 the proceedings were
suspended until the termination of the proceedings mentioned in
paragraph 28 above. No appeal was submitted against the suspension.
- Upon
a criminal complaint lodged by the applicant on 29 November 2006,
regulatory offence proceedings were also initiated before the
Budapest XX District Mayor’s Office against Gy.B. for trespass.
On 2 August 2007 the proceedings were discontinued, as Gy.B.
was, at that time, registered as the property’s owner in the
land register. The applicant’s complaint against the decision
was dismissed on 23 August 2007. The applicant did not seek to
prosecute privately.
- In
March 2007 Gy.B. changed the locks on the apartment but did not
provide the applicant with keys. Therefore, the applicant requested
the protection of her possession from the Budapest XX District
Notary. On 13 August 2007 the Notary found for her and ordered
Gy.B. to provide her with keys to the apartment.
- On
11 May 2007 the applicant changed the locks on her door in an attempt
to prevent Gy.B. from re-entering the apartment. On the same day he
arrived with police officers who obliged her to provide access to
him, as his registered place of residence was the apartment.
- On
19 March 2008 the applicant requested the District Notary to delete
her address as the place of residence of Gy.B. and to order him to
leave the apartment. However, as it was not the competent authority
to do so, the notary dismissed her request without an examination on
the merits, on 2 June 2011. Moreover, as Gy.B. was actually living in
the apartment, the deletion of her address as his place of residence
was not possible. The applicant did not lodge an appeal against that
decision.
- Further
to this, on 9 April 2008 the applicant initiated civil proceedings
before the District Court, requesting the court to order Gy.B. to
leave the apartment. The proceedings are still pending, the court
having suspended them on 5 September 2008 pending the outcome of the
property dispute between Gy.B. and the applicant mentioned in
paragraph 28 above.
- On
2 August 2010 the applicant again changed the locks on the doors in
order to prevent Gy.B. entering the apartment. The District Police
Department initiated criminal proceedings against her for trespass.
The applicant lodged a complaint in this connection, which was
dismissed on 6 September 2010.
II. RELEVANT DOMESTIC LAW
A. Act no. XIX of 1998 on the Code of Criminal
Procedure
Section 138/A – Restraining Order
“(1) A restraining order restricts the right of
the accused to free movement and the free choice of residence. The
accused under the effect of a restraining order shall, in line with
the rules established by the court decision,
a) leave the dwelling specified by the court and keep
away from such dwelling for a period prescribed by the court,
b) keep away from the person specified by the court, and
from this person’s home, workplace, ... for a period specified
by the court,
c) refrain from directly or indirectly contacting the
person specified by the court.
(2) A restraining order may be issued in case of a
well-founded suspicion of a criminal act punishable by imprisonment
having been committed – provided that the purpose of the
restraining order may be fulfilled and if pre-trial detention of the
accused is not necessary – and if, particularly in view of the
nature of the criminal act, the behaviour of the accused prior to and
during the procedure and the relationship between the accused and the
aggrieved party, there is well-founded reason to assume that if left
in the residential environment, the accused would
...
b) carry out the attempted or planned criminal act or
commit another criminal act punishable by a prison sentence against
the aggrieved party. ...
(4) A restraining order shall be issued by order of a
court. ...”
- A
restraining order is valid between ten and sixty days.
B. Act no. IV of 1978 on the Criminal Code
Section
176 – Criminal Trespass
“ (1) A person who enters or remains in another
person’s home, other premises or fenced off area which
constitutes part of the property, by force, menace, or on the false
pretext of carrying out official duties, shall have committed a
misdemeanour punishable by imprisonment of up to two years.”
C. Act no. LXXII of 2009 on Restraining Order due to
Violence among Relatives
- This
law enables the police to place a temporary restraining order on the
perpetrator for seventy-two hours, inter alia, if it finds
evidence of domestic violence upon an onsite visit, or upon the
report of the aggrieved party. The courts may issue a restraining
order for up to thirty days.
- However,
the Act is only applicable to the relationships listed in it (section
1 subsection 5), and former common-law spouses do not fall within its
scope if the relationship has not been previously registered.
D. Act no. LXVI of 1992 on the Registration of
Citizens’ Personal Data and Residence
- According
to section 26(4), the registration of a place of residence does not
create any pecuniary rights or rights concerning the use of the
property.
E. Act no. IV of 1959 on the Civil Code
- If
a possessor’s ownership rights are interfered with, section
188(1) of the Civil Code provides for the protection of the
possession (“birtokvédelem”) from any
specified person. Application of this measure may be requested from
the notary within one year of the beginning of the interference. The
decision taken by the notary is subject to appeal before the domestic
courts. If more than one year has passed, the discontinuance of the
interference may be directly requested from the courts.
F. Act no. III of 1952 on the Code of Civil Procedure
- Section
156(1) of the Code of Civil Procedure allows a party to request the
courts, as an interim measure, to execute his or her claim or request
for an interim measure to be applied, if it is necessary, inter
alia, in order to prevent imminent damage from materialising or
if the petitioner’s legal protection merits special
consideration.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the Hungarian authorities failed to take
positive measures to protect her from her violent former common-law
husband. She relied on Articles 2, 3 and 8 of the Convention. The
Court finds that this complaint should be analysed under Article 8,
which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested that argument.
A. Admissibility
1. The Government’s arguments
- The
Government acknowledged that the applicant had submitted several
criminal complaints for harassment, assault and trespass. However,
they maintained that the applicant had failed to avail herself of all
effective domestic remedies. In particular, she had failed to pursue
several of her criminal charges for assault and thus the cases were
discontinued. In addition, the Government argued that there had been
no evidence or even indication that the applicant had been forced in
any way or intimidated by the alleged perpetrator to withdraw her
charges. Concerning her complaints of harassment and trespass, she
had failed to file a private lawsuit after the discontinuation of the
investigations. Furthermore, she had not appealed against the
criminal judgments convicting her.
- Apart
from the failure to make full use of the criminal law remedies, the
Government were of the view that the applicant had also failed to
make effective use of the remedies under civil law. Firstly, she had
not requested the protection of her possession from the notary or the
court, despite the possibility provided by the Civil Code. The fact
that she requested the notary on one occasion to ensure she was
provided with keys to the apartment (see paragraph 31 above) could
not, in their opinion, be considered as a request for protection of a
possession. Moreover, in the course of such proceedings, she could
have requested an interim measure to be applied under section 156(1)
of the Code of Civil Procedure granting her exclusive possession of
the apartment in question.
- In
the Government’s view, the obligation to exhaust domestic
remedies could not be regarded as having been fulfilled by the
applicant’s request to the notary to delete her address as
Gy.B.’s place of residence (see paragraph 33 above). According
to their reasoning, this request could not have provided effective
redress for the applicant’s grievances as the registration of a
place of residence did not create any rights concerning the use of
real estate (see paragraph 39), therefore its deletion could not
extinguish any rights either. In any event, the applicant had failed
to seek judicial review of the notary’s decision.
2. The applicant’s arguments
- The
applicant disputed the Government’s arguments in general terms.
She contended that the violation not only derived from the State’s
actions, but also from its failure to act, against which no effective
remedy was available.
3. The Court’s assessment
- The
Court reiterates that the purpose of Article 35 of the Convention is
to afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Convention institutions.
Consequently, States are dispensed from answering for their acts
before an international body before they have had an opportunity to
put matters right through their own legal system. The rule of
exhaustion of domestic remedies referred to in Article 35 of the
Convention requires that normal recourse should be had by an
applicant only to remedies that relate to the breaches alleged and at
the same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness; it falls to the respondent State to establish that
these various conditions are satisfied (see Selmouni v. France
[GC], no. 25803/94, §§ 74 and 75, ECHR 1999 V, and
Branko Tomašić and Others v. Croatia, no.
46598/06, §§ 35-37, 15 January 2009).
- The
Court would emphasise that the application of this rule must make due
allowance for the context. Accordingly, it has recognised that
Article 35 must be applied with some degree of flexibility and
without excessive formalism (see Cardot v. France, 19 March
1991, § 34, Series A no. 200). It has further recognised that
the rule of exhaustion of domestic remedies is neither absolute nor
capable of being applied automatically; in reviewing whether the rule
has been observed, it is essential to have regard to the particular
circumstances of the individual case (see Van Oosterwijck v.
Belgium, 6 November 1980, § 35, Series A no. 40). This
means, amongst other things, that the Court must take realistic
account not only of the existence of formal remedies in the legal
system of the Contracting Party concerned but also of the general
legal and political context in which they operate as well as the
personal circumstances of the applicants (see Akdivar and Others
v. Turkey [GC], 16 September 1996, § 69, Reports of
Judgments and Decisions 1996 IV).
- Turning
to the particular circumstances of the case, the Court notes the
Government’s observations that the applicant failed to pursue
her criminal complaints, and that she did not request the protection
of her possession from the domestic courts. However, it observes that
the applicant availed herself of several other remedies provided by
domestic law. These proceedings, namely repeated requests for a
restraining order and a civil claim to order Gy.B. to leave the flat
(see paragraphs 17, 24 and 34 above), could in principle, if pursued
successfully, have led to the removal – if only temporary –
of Gy.B. from the flat the applicant lives in. In this connection the
Court points out that, in the event of there being a number of
domestic remedies which an individual can pursue, that person is
entitled to choose a remedy which addresses his or her essential
grievance. In other words, when a remedy has been pursued, use of
another remedy which has essentially the same objective is not
required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29
April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01,
ECHR 2004 V (extracts); and Jeličić
v. Bosnia and Herzegovina (dec.),
no. 41183/02, ECHR 2005 XII
(extracts)).
- The
Court further notes that there are three separate sets of civil
proceedings pending before the domestic courts between the applicant
and Gy.B., all of which have been suspended until the determination
of yet another civil dispute. The Court therefore considers that for
the applicant to avail herself of an additional civil action for the
protection of her possession would be redundant.
- In
these circumstances the Court is satisfied that the applicant has
thus exhausted domestic remedies. Consequently, the Government’s
objection must be dismissed. Furthermore, this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
- The
applicant pointed out that while the Government had emphasised the
difficulties in reconstructing the facts of an act which had happened
behind closed doors, they had not taken into real consideration the
positive obligation of the State to protect her private and family
life. Her right to physical integrity had required the domestic
authorities to decide on her civil disputes with Gy.B. within a
reasonable time. The applicant further argued that a remedy which was
slow could not be regarded effective. In her opinion, Article 8 of
the Convention included her right to use her home being secure in her
person and without disturbance.
(b) The Government
- The
Government submitted that the Hungarian authorities had taken all
measures which could reasonably be expected of them in the particular
circumstances of the case in order to protect the applicant’s
physical well-being, therefore meeting the State’s positive
obligations.
- As
to the applicant’s injuries, the Government wished to point out
that the applicant had exaggerated the severity of the abuse suffered
by her and that her allegations had not always been credible. The
authorities had had to respect Gy.B.’s right to be presumed
innocent and the principle of in dubio pro reo. As the
domestic courts had had the benefit of a direct hearing, they had
been in the best position to assess the credibility of the
applicant’s allegations.
- Lastly,
the Government observed that the applicant herself had also initiated
assaults against Gy.B. and had been found guilty of acts of violence
towards him. The fact that in many cases she had also benefited from
the principle of in dubio pro reo shows that the
authorities were not prejudiced against her.
- In
sum, the Government maintained that in the above-described
circumstances, no further action could reasonably have been taken by
the Hungarian authorities to protect the applicant’s physical
well-being.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that while the essential object of Article 8 is to
protect the individual against arbitrary action by the public
authorities, there may in addition be positive obligations inherent
in effective “respect” for private and family life and
these obligations may involve the adoption of measures in the sphere
of the relations of individuals between themselves (see, mutatis
mutandis, X and Y v. the Netherlands, 26 March 1985,
§§ 22 and 23, Series A no. 91; Mikulić v.
Croatia, no. 53176/99, § 57, ECHR 2002 I; and
Sandra Janković v. Croatia, no. 38478/05, § 44,
5 March 2009).
- As
regards respect for private life, the Court has previously held, in
various contexts, that the concept of private life includes a
person’s physical and psychological integrity. Under Article 8,
States have a duty to protect the physical and psychological
integrity of an individual from threats by other persons. To that end
they are to maintain and apply in practice an adequate legal
framework affording protection against acts of violence by private
individuals (see X and Y v. the Netherlands, cited above, §§
22 and 23; Costello-Roberts v. the United Kingdom, 25 March
1993, § 36, Series A no. 247 C; and Sandra Janković,
cited above, § 45). For the Court, these considerations equally
apply in situations where an individual’s right to the
enjoyment of his or home free of violent disturbance is at stake.
(b) Application of the above principles to
the present case
- The
main issue in the present case is whether the State complied with its
positive obligation to protect the physical integrity of the
applicant from the threat posed by her former common-law husband. The
applicant involuntarily shares her home with this person, which is
aggravated by the fact that their relationship has deteriorated to
such an extent that disputes - including mutual verbal and physical
assaults - occur on a regular basis. Her civil actions and criminal
complaints were to no avail.
- In
this connection, the Court reiterates that there is no doubt that the
events giving rise to the present application pertain to the sphere
of private life within the meaning of Article 8 of the Convention.
The facts outlined above show that the applicant made credible
assertions that over a prolonged period of time Gy.B. presented a
threat to her physical integrity in her apartment and actually
attacked her on a number of occasions. In view of these facts, the
Court considers that the State authorities had a positive obligation
to protect the applicant from the violent behaviour of her former
common-law husband exerted in her home, notwithstanding the fact that
she had also been violent towards him.
- The
Court notes that the national courts instituted several sets of
criminal proceedings against Gy.B. Having been found guilty on two
occasions, he was released on parole and ordered to pay a fine. Two
other sets of criminal proceedings for assault are pending against
him. The Court is mindful of the fact that domestic courts are better
placed to examine the issue before them and to ascertain the
circumstances of the case, as they have the benefit of hearing the
parties in person and examining the evidence. Moreover, the Court
acknowledges that in a criminal case, the principle of in dubio
pro reo serves as an important guarantee against arbitrary
judgments.
- The
Court stresses that its task is not to take the place of the
competent Hungarian authorities in determining the most appropriate
methods of protecting individuals from attacks on their personal
integrity, but rather to review under the Convention the decisions
that those authorities have taken in the exercise of their power of
appreciation (see Sandra Janković, cited above, §
46). Moreover, the Court is aware that in respect of a measure of
restraint ordered against an individual, the interest of the
protection of a person’s physical integrity conflicts with the
other person’s right to liberty.
- Notwithstanding
the aforementioned, the Court finds it striking that the authorities
needed more than one and a half years to decide on the applicant’s
first request for a restraining order (see paragraphs 17 and 18
above). The fact that the applicant failed to appear at the first
hearing and that Gy.B. requested the postponement of another hearing
cannot justify the unreasonably long duration of the proceedings. The
rationale of such a measure is to provide immediate or at least
prompt protection for victims of violence. Even if the request is
eventually dismissed, a decision should be taken without delay. The
problem is further aggravated by the lack of legal deadlines for such
decisions.
- As
to the dismissal of the applicant’s requests for a restraining
order, the Court takes the view that the domestic courts failed to
give sufficient reasons for their decisions. On both occasions, the
courts referred to the hearings held in this matter, but apart from
stating that the bad relationship was imputable to both parties and
that the conditions for issuing a restraining order had not been met,
they failed to put in writing the particular reasons justifying their
decision.
- The
Budapest Regional Court acknowledged the risk of recidivism; however,
it took the view that restraining order could not be issued as both
parties were involved in the assaults. In this respect, the Court
notes that if it could not be ordered in cases of mutual assaults,
then the aim of providing effective protection to victims would be
seriously undermined. The possibility that the victim acted in
legitimate self-defence cannot be ruled out at that stage. Precisely
this was established by the XX/XXI/XXIII District Court in its
judgment of 6 July 2011 (see paragraph 26 above). The domestic
court’s reasoning that a restraining order could not be issued
in view of the aggrieved party’s involvement is therefore not
acceptable. Moreover, in the case of mutually violent parties,
restraining orders should be issued in respect of both parties in
order to prevent contact between them.
- The
considerations above are further aggravated by the fact that the
applicant falls outside the personal scope of the Act on Restraining
Order due to Violence among Relatives (see paragraph 38 above).
Though divorced people and former registered partners receive the
same protection as married people, this is not afforded where the
perpetrator is the former common-law husband and that tie was not
registered with the authorities. While accepting that the legislature
may legitimately seek to protect those within specific, recognised
relationships, the Court observes nonetheless that the applicant was
excluded from the protection of this Act.
- Lastly,
the Court must draw attention to the fact that there are three
different sets of civil proceedings pending before the domestic
courts concerning the apartment in question. These proceedings,
namely an action initiated by the applicant to order Gy.B. to leave
the apartment (see paragraph 34 above) and two sets of proceedings
for the determination of ownership (see paragraphs 28 and 29 above)
would, in theory, be capable of eradicating the root of the problem,
which is the unwanted residence of Gy.B. in the flat. In light of the
regular and rather violent disputes between the parties and the fact
that those proceedings have been suspended since 2007 and 2008,
respectively, the Court finds that the domestic courts failed to
comply with their positive obligation to decide the cases within a
reasonable time.
- Having
regard to the foregoing, and notwithstanding the respondent State’s
margin of appreciation in the matter, the Court concludes that the
Hungarian authorities failed to fulfil their positive obligations.
- There
has accordingly been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 13 OF THE
CONVENTION
- Relying
on Articles 2 and 3 of the Convention, the applicant complained that
the Hungarian authorities failed to take positive measures to protect
her from her violent former common-law husband. Moreover, invoking
Article 13 of the Convention, the applicant maintained that the
remedies offered were ineffective and failed to provide sufficient
protection to her.
- The
Government contested these arguments in general terms. They pointed
out in particular that Article 13 of the Convention does not require
that recourse to a remedy always be successful irrespective of an
unfounded claim. They argued that in the present case the applicant
was able to raise her arguable claims of ill-treatment before the
competent authorities but her claims were not found to be justified.
The remedies provided for by the Hungarian criminal law qualify as
effective remedies for well-founded claims. Therefore, the Government
considered that the applicant’s complaint under Article 13 of
the Convention was manifestly ill-founded.
- Regard
being had to its finding of a violation of Article 8 of the
Convention (see paragraph 70 above), the Court, while declaring these
complaints admissible, does not consider it necessary to examine them
separately under Articles 2, 3 or 13 of the Convention, their essence
having already been dealt with in the context of Article 8.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 14 of the Convention, the applicant complained that the
inaction of the authorities might have been based on discrimination
against her on account of her Roma origin.
- The
Court observes that the applicant has failed to show that she was
treated differently compared to other persons in analogous
situations. There is nothing to suggest that the authorities’
decisions were motivated by discrimination. This part of the
application is thus unsubstantiated and should be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 1,500,000 Hungarian forints (HUF)
in respect of non-pecuniary damage sustained on account of the
physical and psychological suffering caused by the violation.
- The
Government found the applicant’s claim to be excessive.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage and awards her the full sum claimed, that is,
EUR 5,150.
B. Costs and expenses
- The
applicant did not submit a separate costs claim.
C. Default interest
- 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.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints concerning
Articles 2, 3, 8 and 13 admissible and the remainder of the
application inadmissible;
- Holds unanimously that there has been a
violation of Article 8 of the Convention;
- Holds unanimously that there is no need to
examine separately the complaint under Article 2 of the Convention;
- Holds by six votes to one that there is no need
to examine separately the complaints under Articles 3 and 13 of the
Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,150 (five
thousand one hundred and fifty euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Hungarian forints at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 24 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens Deputy Registrar President
