Communicated on 10 February 2015
THIRD SECTION
Application no. 30777/14
Mihaela-Mara PĂTRĂUCEANU-IFTIME
against Romania
lodged on 9 April 2014
STATEMENT OF FACTS
1. The applicant, Ms Mihaela-Mara Pătrăuceanu-Iftime, is a Romanian national, who was born in 1975 and lives in Iași.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In 1997, she married P.I.N, a priest. Their children F.P. and S.S.P. were born in 2001, and respectively in 2006.
4. Since the beginning of their marriage, P.I.N. had been aggressive and violent towards the applicant, both physically and verbally. The children were often present during the abuse, and they were often threatened with violence, slapped, punched or hit with a belt by their father.
5. On 10 May 2010 the applicant’s husband had been violent towards their son, F.P. On 12 May 2010 the Iași Forensic Institute issued a medical certificate which attested that the applicant’s son presented ecchymosis which necessitated 1-2 days for healing.
6. The applicant wanted to lodge an action for divorce, but abandoned it due to her husband’s threats.
7. On 14 March 2011 F.P. was battered with a belt by P.I.N. The Iași Forensic Institute issued a medical certificate attesting multiple ecchymosis on F.P.’s body.
8. On 30 May 2011 the applicant lodged an action for divorce, requesting the dissolution of the marriage on account of P.I.N’s violent behaviour.
9. On 14 June 2011 the applicant was assaulted physically and verbally by her husband and she moved out of their home. The children remained with their father.
The event was registered by the Iași Police Section no. 5, where she was convinced to drop the criminal complaint against her husband as her injuries were not serious enough.
The Iași Forensic Institute issued a medical certificate on 15 June 2011, attesting the existence of ecchymosis on the applicant’s arms and legs.
1. Proceedings for temporary custody
10. On 22 November 2011 the applicant sought to obtain temporary custody of the children by means of an urgent procedure, until the end of the divorce proceedings. On 16 December 2011 the applicant’s children, who were then 10 and five years old, were heard by the court sitting in private. They mentioned their father’s aggressiveness and expressed strongly their will to live with their mother. F.P. stated that he had been beaten with a belt by his father.
11. In a decision of 20 December 2011 rendered by the Iași District Court, parental authority was granted to both parents and it was established that the children should live with their mother.
2. Divorce proceedings
12. On 22 June 2012 the Iași District Court dismissed the applicant’s action on the merits. It held that the applicant had failed to prove that P.I.N. had been violent towards the children, as the medical certificates she submitted did not prove that P.I.N. had caused the injuries. The Iași District Court considered that the applicant would have taken more prompt measures to remove the children from P.I.N.’s presence if he indeed were violent towards them. The applicant had moved out of their common household in June 2011, initiating an extra-marital affair with another man. It was established that not one single reason for dissolving the marriage could be imputable to P.I.N.
13. As P.I.N. had not lodged a counterclaim seeking the dissolution of the marriage for the applicant’s exclusive fault, the divorce could not be pronounced.
14. On 18 March 2013 the Iași County Court allowed the applicant’s appeal, allowing the divorce on account of the common fault of both spouses. The Iași County Court gave credibility to F.P. statements concerning P.I.N’s violent behaviour towards him and the applicant, as well as to the statements given by the applicant’s father confirming the alleged violence. Both the applicant and P.I.N. were considered responsible for the deterioration of the marriage.
15. P.I.N. lodged an appeal on points of law against this decision. He pointed out that he was a priest and that the Statute of the Romanian Orthodox Church would not allow him to practise his profession in the case of a divorce. It appears, according to P.I.N., that he would have no justification before his superiors to continue practising his profession as a priest in case it were held that his actions had contributed to the deterioration of the marriage.
16. On 9 October 2013 the Iași Court of Appeal allowed P.I.N.’s appeal and quashed the County Court’s decision. It reiterated that the applicant had left the family in 2011, initiating an extra-marital affair. The Court of Appeal also noted that there was no evidence indicating that she had left the home on account of P.I.N’s violent behaviour. It was held that the applicant alone was responsible for the deterioration of the marriage. The divorce was not granted.
3. Proceedings for obtaining a protective order against P.I.N.
17. On 27 November 2013 while the applicant was taking the children to school, P.I.N. blocked her passage way, yelled at her and insulted her and attacked her with a lever. The children got scared and ran away during the attack. The applicant, together with two other persons left to seek the children, while P.I.N. followed them by car.
18. On the same date, the applicant lodged a criminal complaint for threats and assault against P.I.N. The complaint is currently pending before the investigation authorities.
The applicant and her children were admitted for 14 days in a centre for the protection of victims of domestic abuse.
On 12 December 2013 their accommodation there was prolonged for six months.
19. On 7 February 2014 a psychological evaluation established the negative impact that the violent episode had both on the children, and on the applicant. It was noted that the children suffered from feelings of fear, fury, and intense negative feelings; the applicant suffered from anxiety and depressive episodes.
20. On 13 February 2014 the Iași Court allowed the applicant’s request and instituted a protection order against P.I.N. It was ordered that P.I.N. stay at a distance of 20 meters from the applicant and her children, and at a distance of 100 meters from her employment premises and from the children’s school. The Iași Court relied on the witnesses’ statements, the children’s statements which the negative feelings and fear they had towards their father, as well as psychological reports concluded by two different psychologists. It became final on 6 August 2014.
B. Relevant domestic law
The New Civil Code
Article 373
Grounds for divorce
“Art. 373. – A divorce may be pronounced:
a) through the common agreement of both spouses, at the request of both spouses or at the request of one spouse with the consent of the other spouse;
b) when, on the basis on solid grounds, the relationship between the spouses is severely deteriorated and the continuation of the marriage is no longer possible;
c) at the request of one of the spouses, after a de facto separation which lasted for at least two years;
d) at the request of the spouse whose state of health renders impossible the continuation of the marriage.
Divorce on account of exclusive fault of one spouse
Conditions
Art. 379. - (1) In the situation foreseen by art.373 parag.b), the divorce may be pronounced if the judicial authorities establish one the spouses’ exclusive fault for the deterioration of the marriage. However, if the evidence administered indicated that both spouses are at fault for the deterioration of the marriage, the divorce may be pronounced on grounds of common fault, even if only one spouse had requested the divorce. If the fault belongs exclusively to the claimant, the provisions of art.388 are applicable.
(2) In the situation foreseen by art.373 parag.c), the divorce may be pronounced on grounds of the claimant’s exclusive’s fault, excepting the situation when the other spouse agrees with the divorce, the divorce being pronounced without reference to the spouses fault.
Right to compensation
Art. 388. – Separately from the divorce alimony foreseen by art. 390, the innocent spouse who suffers a prejudice by the dissolution of the marriage may request the spouse at fault to compensate him or her. [...]
COMPLAINTS
21. The applicant complains under Article 8 § 1 of the Convention that the refusal to grant her a divorce from her abusive husband obliges her to maintain a marriage which does not correspond to her real life situation. It further compels her and her children to return to a violent environment which has caused them psychological trauma. She considers that the evidence substantiating her claims of domestic violence had been overlooked by the courts, which led to a breach of her and her children’s right to physical and psychological integrity.
22. The applicant complains under Article 3 of the Convention that the refusal to grant her a divorce had constituted a form of tolerance towards domestic violence, having deprived her and her children of adequate protection from P.I.N.’s subsequent violent behaviour on 27 November 2011.
23. Under Article 5 Protocol 7, the applicant complains that her request for a divorce has been refused in order to protect her husband who, as a priest, could no longer have practiced his profession if he were divorced - especially if the divorce were imputable to him.
QUESTIONS TO THE PARTIES
Has the refusal to allow the applicant to divorce her husband constituted an interference with the applicant’s right to respect for her private life within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
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