SECOND SECTION
DECISION
Application no. 21029/13
Liuda IACHIMOVSCHI
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 22 September 2020 as a Committee composed of:
Arnfinn Bårdsen, President,
Valeriu Griţco,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Setion Registrar,
Having regard to the above application lodged on 25 March 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Liuda Iachimovschi, is a Moldovan national, who was born in 1974 and lives in Măcărești. Her application was lodged on 25 March 2013. She was represented before the Court by Mr A. Postică and Ms L. Potîng, lawyers practising in Chișinău.
The Moldovan Government (“the Government”) are represented by their Agent, Mr O. Rotari.The circumstances of the case
1. The facts of the case, as submitted by the parties, may be summarised as follows.
2. The applicant was married to A. On 6 July 2011 she filed for divorce and left the common home with their three children, allegedly after A. had threatened her with violence.
3. On 20 October 2011 she went to their home to pick up some clothes. A. was absent, but arrived while the applicant was still inside. He became aggressive, punched and kicked her. On the same day, the applicant was admitted to a hospital, where she was treated for ten days. According to a forensic report of 24 October 2011, the applicant had suffered a brain concussion, a hematoma on the right eye and an oedema on the right ear. The report concluded that the injuries amounted to minor bodily harm. While the applicant was in hospital, she was visited by a police officer, to whom she explained what had happened and signed a declaration, asking “to take lawful measures against [A.]”.
4. On 3 November 2011 the police officer drew up a report, finding that A. had committed the minor offence (contravenție administrativă) of intentionally causing minor bodily harm (Article 78 of the Code of Minor Offences (Codul Contravențional)) and sanctioned him with a fine of 1,000 Moldovan lei (MDL, the equivalent of approximately 60 euros (EUR) at the time). Under applicable domestic legislation, A. had the possibility to pay half of that sum within 72 hours, which he did. At the same time, a criminal investigation was initiated against the applicant for causing medium gravity bodily harm to A. (according to the applicant, while resisting A., she has bitten his finger).
5. On 9 November 2011 the applicant complained to the Ungheni prosecutor’s office, describing the events of 20 October 2011. She disagreed with the initiation of both the criminal investigation against her and the administrative sanctioning of A. She noted, in particular, that A. had been sanctioned under Article 78 of the Code of Minor Offences and that she disagreed with the administrative sanction applied to him, since he should be prosecuted under applicable criminal law provisions. She finally asked the prosecutor “to address the [Ungheni police station] and to order the competent persons to examine my complaint in accordance with the law”, as well as to prosecute A. for the criminal offence of domestic violence.
6. On 16 November 2011 the Ungheni prosecutor’s office replied that it saw no reason to intervene.
7. On 8 December 2011 the applicant appealed the decision of 3 November 2011 to the Ungheni District Court and asked for the annulment of that decision. She noted that she had not been informed of the decision taken on 3 November 2011 and only saw it on 25 November 2011 in the prosecutor’s office.
8. After the case was sent for a re-trial, on 10 July 2012 the Ungheni District Court found that the applicant had missed the fifteen-day time-limit to file an appeal against the decision of 3 November 2011. In particular, the court found that the applicant had not submitted any evidence that she had been informed of that decision on 25 November 2011, while it was clear from her complaint of 9 November 2011 that at that date she was aware of the content of the decision. Moreover, she could not explain to the court when she had found out about the decision of 3 November 2011, did not indicate any reason for missing the time-limit and did not ask the court to extend it. That decision was upheld by the final decision of the Bălți Court of Appeal on 26 September 2012.
9. In the meantime, the applicant’s complaint made to the Ungheni prosecutor’s office on 9 November 2011 was the subject of examination by a hierarchically superior prosecutor and subsequently by an investigating judge. After several instances when the case was sent for re-examination by the prosecutor, who each time decided not to initiate a criminal investigation, by a final decision of 30 April 2013 the investigating judge confirmed the prosecutor’s decision not to start an investigation. The judge found that A. could not be prosecuted since he had already been sanctioned administratively; his criminal prosecution would be contrary to the right not to be tried or punished twice.Relevant domestic law
10. Under section 13 of the Law no. 45 (2007) regarding the fight against domestic violence, requests for protection orders may be lodged, inter alia, by a prosecutor, when a victim of domestic violence is unable to make such a request.
11. Under section 386 of the Code of Minor Offences, the prosecutor has the power, inter alia, to verify the lawfulness of the actions of the agent recording a minor offence.
12. Under section 443 (13) of the Code of Minor Offences, a copy of the minutes (procesul verbal) establishing the commission of a minor offence shall be issued to the victim at the latter’s request.
13. Under section 448 (1) of the Code of Minor Offences, the time-limit for appealing a decision concerning a minor offence (procesul-verbal cu privire la contravenție) is fifteen days from the day when the person was informed about the fact that the decision had been taken. Such an appeal may be lodged by the offender, the victim or the prosecutor.
COMPLAINTS
14. The applicant complained under Article 3 of the Convention about the authorities’ failure to carry out an effective investigation into her allegations of ill-treatment by her former husband, in particular the failure to prosecute him under applicable criminal law provisions.
15. She also complained that the domestic violence to which she had been subjected amounted to discrimination, contrary to Article 14 of the Convention.
THE LAW
16. The Government argued that the applicant had failed to exhaust available domestic remedies. In particular, she missed the fifteen-day time-limit established by law to appeal against the decision sanctioning A. for a minor offence and did not ask the court to extend that time-limit. After that decision remained final, A. could not be prosecuted for the same offence without breaching the principle non bis in idem.
17. The applicant argued that she had complained to the prosecutor’s office, which had inter alia the responsibility of protecting victims of domestic violence under Law no. 45 (see paragraph 10 above) and had the power to verify the lawfulness of the actions of the agent who had adopted the decision of 3 November 2011 under section 386 of the Code of Minor Offences (see paragraph 11 above). She relied on the professionalism of the prosecutor, but the latter did not intervene and failed to inform her of her right to appeal against the decision of 3 November 2011 within fifteen days. Moreover, she had not been properly informed of the decision of 3 November 2011 until 25 November 2011 (see paragraph 7 above) so that her complaint had been lodged on time.
18. The Court reiterates that it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule 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 Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009). However, the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014).
19. Furthermore, Article 35 § 1 of the Convention provides for a distribution of the burden of proof. As far as the Government are concerned, if they claim non-exhaustion they must satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009, and Nada v. Switzerland [GC], no. 10593/08, § 141, ECHR 2012). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others, cited above, § 77, and the cases cited therein).
20. The Court observes that the applicant did not lodge an appeal against the decision of 3 November 2011 within fifteen days as required by law. She did not argue that the remedy referred to by the Government, namely an appeal against the decision in court, was ineffective in principle. Rather, she argued that she had not been informed until much later about it and that she had relied on the prosecutor to take the necessary steps so as to have A. prosecuted for a criminal offence.
21. In this latter respect the Court notes that under the various legal texts referred to by the applicant the prosecutor had the power, but not the obligation to intervene. Moreover, even if the prosecutor decided to intervene, he or she could not annul the decision already taken, but had to appeal it in court, just as the applicant eventually did (see paragraph 13 above). It follows that the remedy of complaining to the prosecutor, while effective for initiating criminal proceedings in principle, was ineffective in respect of annulling decisions already taken under the Code of Minor Offences. Finally, it is noted that on 16 November 2011, while the applicant had not yet missed the time-limit to appeal against the decision of 3 November 2011, she was informed that the prosecutor would not intervene in this case (see paragraph 6 above). Even after being informed of that decision, the applicant waited for more than fifteen days prior to lodging, on 8 December 2011, her appeal in court against the decision of 3 November 2011. She thus allowed the decision of 3 November 2011 to become final.
22. As for the date on which the applicant was informed of the decision of 3 November 2011, it is important to note that under section 443 (13) of the Code of Minor Offences (see paragraph 12 above) a copy of the relevant decision is to be issued to the victim at the latter’s request. The domestic courts established that by 9 November 2011 at the latest she clearly knew about the decision of 3 November 2011 (see paragraph 8 above). She therefore had had the real possibility to ask for a copy of that decision, which she had failed to do.
23. The Court reiterates that the rule on the exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, given the context of protecting human rights. It has also accepted that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Vučković and Others, cited above, §§ 69-77, and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-84, 9 July 2015, with further references).
24. In the present case, in dealing with the applicant’s case, the domestic courts expressly noted that they would be breaching the principle of non bis in idem by having A. prosecuted for the same actions for which he had already been convicted in the previous proceedings. The Court recalls that it has found in previous cases concerning the Republic of Moldova that, for the purposes of the Convention, minor (administrative) offences are to be considered as “criminal” in nature (see, for instance, Ziliberberg v. Moldova, no. 61821/00, §§ 29-35, 1 February 2005). It notes that the decision of 3 November 2011 was adopted after having heard the applicant and the accused and having determined the latter’s guilt of having committed the minor offence of causing minor bodily harm (see paragraph 4 above). A. was sanctioned with a fine, which had both a deterrent and punitive character. Accordingly, the Court agrees with the assessment of the domestic courts that since the decision adopted on 3 November 2011 became final, it was no longer possible for the prosecutor to criminally prosecute A. for the same actions without breaching the principle non bis in idem, which is enshrined in Article 4 of Protocol No. 7 to the Convention (see Mihalache v. Romania [GC], no. 54012/10, §§ 87-101, 8 July 2019). Therefore, the Court observes that in the present case the domestic courts did not act with excessive formalism, but rather in order to avoid breaching one of the provisions of the Convention and its Protocols.
25. In the light of the above, the Court finds that in the present case the applicant did not exhaust available domestic remedies. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 October 2020.
Hasan BakırcıArnfinn Bårdsen
Deputy RegistrarPresident
Full & Egal Universal Law Academy