Communicated on 6 October 2014
FOURTH SECTION
Application no. 31959/13
Violeta PULFER
against Albania
lodged on 19 April 2013
STATEMENT OF FACTS
The applicant, Ms Violeta Pulfer, is an Albanian national, who was born in 1967 and lives in Tirana. She is represented before the Court by Ms A. Kuçani and Mr G. Çela, lawyers practising in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date in 2011 the applicant and her husband relocated to live in Vlora. The applicant agreed to buy a house which had been unlawfully built by S.N. In the meantime, S.N had filed a request for the regularisation of the house’s unlawful status.
On 19 October 2011 the applicant and S.N concluded a down-payment agreement (kontratë kapari) according to which the applicant deposited almost half of the sale price as down payment (kapar), the remainder to be paid upon the completion of the house’s regularisation and the conclusion of the sale agreement.
On 8 December 2011 the applicant moved to the house.
1. The forceful eviction of the applicant from the house
(a) The first eviction attempt
On 12 January 2012 S.N requested the applicant to vacate the house. The applicant opposed the eviction and reminded S.N of the obligations arising from the earnest money contract. It would appear that the applicant lodged a criminal complaint against S.N for the offence of self-made justice under Article 277 of the Criminal Code (“CC”).
On 1 February 2012 S.N lodged a civil action requesting that the earnest money contract be declared null.
On 3 May 2012 the Vlora District Court rejected the action and found that the earnest money contract was valid and lawful. No appeal having been lodged against it, the decision became final on 18 May 2012.
It would appear that on 10 July 2012 S.N’s house was regularised and, consequently, he obtained the ownership deed. No subsequent sale agreement seems to have been concluded between S.N and the applicant.
On 12 January 2012 the prosecutor took a statement from S.N and his wife about their attempted efforts to evict the applicant from the house.
On 14 May 2012 S.N was charged with the criminal offence of self-made justice under Article 277 of the Criminal Code.
On 20 June 2012 the prosecutor committed S.N for trial. The case file was forwarded to the Vlora District Court in order for it to conduct the proceedings.
On 12 December 2012 the Vlora District Court decided to discontinue the proceedings against the applicant for the criminal offence of self-made justice under Article 277 of the Criminal Code, since the criminal offence had been amnestied in application of a general amnesty act.
(b) The second eviction attempt
In the morning of 8 September 2012 S.N forcefully entered the house. According to the applicant, she was dragged on the ground by a rope around her neck and was knocked against the surrounding wall for around ten minutes.
On the same day the applicant sent text messages to the chief of police and the district prosecutor seeking the authorities’ protection against the alleged violence inflicted on her. She submitted snapshots of text messages to the Registry from her mobile screen as evidence. The police intervened after one hour and a half. The applicant was taken to the police station and kept there from 1 p.m. until midnight.
On 9 September 2012 the applicant saw S.N taking away working tools and objects from the house’s garage. Her appeal for police intervention went unanswered. On the same day she went to the police station to lodge a criminal complaint against S.N for theft. She was kept there from 12 p.m. to 8 p.m.
On 10 September 2012 the applicant was prevented from having access to the house because the door was locked. She states that she was asked by the police to leave the city as they could not offer any protection.
It would appear that from 10 September 2012 the applicant went to live at her mother’s home in Tirana.
On 30 October 2012, through police assistance, the applicant entered the house and found that it had been emptied.
2. Criminal proceedings against S.N
On 8 September 2012 the applicant lodged a criminal complaint against S.N for the criminal offence of self-made justice under Article 277 of the Criminal Code. On the same day the prosecutor questioned S.N as a person against whom an investigation was opened.
On 9 September and 6 December 2012 the applicant made statements before the prosecutor.
On 14 September 2012 the prosecutor opened criminal investigation no. 1473 against S.N for the alleged commission of the offences of light wilful injury and self-made justice under Articles 89 and 277 of the CC.
On 4 October 2012 the applicant lodged another criminal complaint against S.N for , inter alia, the criminal offences of threat, breaking into the house, insult, theft, destruction of property and malicious use of telephone calls under Articles 84, 112, 119, 134, 150 and 275 of the Criminal Code.
On 4 October 2012 the prosecutor opened criminal investigation no. 1588 against S.N for the criminal offence of malicious use of telephone calls under Article 275 of the Criminal Code.
On 8 October 2012 the prosecutor decided to join the two sets of criminal proceedings nos. 1473 and 1588.
On 12 October 2012 S.N made a statement before the prosecutor.
On 2 November 2012 the prosecutor opened criminal proceedings no. 1762 against S.N for the criminal offence of theft under Article 134 of the Criminal Code.
On 6 December 2012, following the applicant’s lawyer’s statement that she had undergone a surgical intervention and the submission of magnetic resonance images of her cervical spine, the prosecutor ordered a new medical examination. The lawyer also submitted a detailed list of the applicant’s belongings which had been inside the house in September 2012.
On 17 January 2013 the forensic experts confirmed that marks of strangulation, hematomas on the head and a suture (as a result of a surgical intervention – see “The applicant’s health and medical examinations” section below) were found on the applicant’s body. The above injuries had resulted in a temporary disability to work for a period of over nine days.
On 15 February 2013 the prosecutor’s office held that S.N was suspected of having committed the criminal offences under Articles 89, 275 and 277 of the Criminal Code. However, it decided to discontinue the proceedings, since the alleged offences had been amnestied in application of a general amnesty act. The decision, in so far as relevant, reads as follows:
“(...) The citizen Violeta Pulfer alleges that on the day of the accident she suffered serious bodily injuries, as a result of which she had to undergo surgical intervention. On 6 December 2012 she was subjected to a forensic re-examination, which being concluded (...), it was found that the bodily injuries resulted in a temporary disability to work for over nine days. The injuries fall to be examined under the criminal offence of light wilful injury prescribed in Article 89 of the Criminal Code.
(...)
On the basis of information obtained during the investigation (...), it resulted that from 24 September 2012 to 27 September 2012, S.N harassed (e ka shqetësuar) Violeta Pulfer by way of telephone calls and threatened her not to return to the house she had purchased. In these circumstances, it is suspected that S.N and E.N have committed the criminal offence prescribed for in Article 277 of the Criminal Code (...).
On 28 November 2012 law no. 107 of 8 November 2012 “On Amnesty” entered into force. Section five provides for the discontinuation of the criminal prosecution of all offences committed until 30 September 2012, in respect of which the Criminal Code prescribed a sentenced of up to two years’ imprisonment or a lighter punishment.
(...)
The criminal offences prescribed for in Articles 89, 277 and 275 of the Criminal Code, in respect of which criminal proceedings have opened, are liable to a maximum term of imprisonment of two years and were committed prior to 30 September 2012. Under these circumstances, there exists a ground in respect of which the criminal proceedings cannot continue.”
3. The applicant’s health and medical examinations
Subsequent to the assault, on 9 September 2012 the prosecutor ordered that the applicant undergo a medical examination.
On 10 September 2012 the applicant was examined by a forensic expert. The medical report found visible marks on the applicant’s neck resulting from strangulation and hematomas on the head resulting from hitting a hard object. The above injuries had made the applicant temporarily disabled for work for a period of nine days.
It transpires from the case file that the applicant’s health started to deteriorate as a result of the assault on 8 September 2012. As a result, she sought expert medical advice in Greece.
According to a hospital certificate of 27 November 2012, the applicant underwent a serious anterior cervical discectomy (a surgery to remove a herniated or degenerative disc in the neck area of the spine) in Greece. She had to subsequently wear a cervical collar for two months.
On 10 January 2013 a medical panel found that the applicant suffered from instability of her cervical spine. She was recommended to apply for recognition of her incapacity to work (fletë drejtimi për Kemp).
On 25 April 2013 the applicant was awarded full invalidity status and has become permanently unfit to work.
B. Relevant domestic law
1. Criminal Code (“CC”)
Under Article 84 the criminal offence of threat is punishable by up to one year imprisonment.
Article 89 provides that the criminal offence of light wilful injury, which has caused a temporary disability to work for more than nine days, is punishable by up to one year’s imprisonment.
Article 112 provides that the criminal offence of breaking into a house is punishable by up to one year imprisonment.
At the material time, Article 112 provided that the criminal offence of insult was punishable by up to one year imprisonment.
Article 134 provides that the criminal offence of theft is punishable by up to three years’ imprisonment.
Article 150 provides that the criminal offence of destruction of property is punishable by up to three years’ imprisonment.
Article 275 provides that the criminal offence of the malicious use of telephone calls is punishable by up to one year imprisonment.
Under Article 277, the criminal offence of self-made justice, which is the exercise of an alleged right by a person to whom it belongs or who believes he is vested with such right, but which right is not recognized by another person, without addressing the appropriate State authority, constitutes a petty crime (kundërvajtje penale) and is punishable by a fine or up to three months’ imprisonment.
2. Code of Criminal Procedure (“CCP”)
Article 328 of the CCP provides for the prosecutor’s right to discontinue the criminal investigation (pushimi i çështjes). Article 329 of the CCP provides for the right to appeal to the district court against the prosecutor’s decision discontinuing the proceedings. An appeal may be lodged with the appellate court against the district court’s decision.
3. Amnesty Act (law no. 107/2012 of 8 November 2012)
Under section 5 of the Amnesty Act the criminal prosecution could not commence and, if so, should be discontinued in respect of those criminal offence which were committed until 30 September 2012 and in respect of which the CC prescribes a sentence of up to two years’ imprisonment or another lighter punishment.
COMPLAINTS
The applicant complains under Articles 2 and 6 of the Convention about the authorities’ failure to promptly protect her life. The applicant also complains under Article 8 about a breach of her right to respect for home.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies in respect of her complaint under Articles 3 and 8, as required by Article 35 § 1 of the Convention? The respondent Government are requested to provide relevant domestic case-law in support of their arguments.
2. Having regard to the State’s positive obligations under Articles 3 and 8 of the Convention, was the manner in which the criminal-law mechanisms were applied in the present case by the domestic authorities in breach of Articles 3 and 8 of the Convention (see, for example, Valiulienė v. Lithuania, no. 33234/07, 26 March 2013; Remetin v. Croatia, no. 29525/10, 11 December 2012; Beganović v. Croatia, no. 46423/06, 25 June 2009; and A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998‑VI)?
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