Information Note on the Court’s case-law 237

February 2020

Buturugă v. Romania - 56867/15

Judgment 11.2.2020 [Section IV]

Article 3

Effective investigation

Positive obligations

Failure of the authorities to address a criminal investigation from the angle of domestic violence: violation

Article 8

Positive obligations

Article 8-1

Respect for correspondence

Failure of the courts to examine the merits of a compla int of cyberbullying closely linked to a complaint about domestic violence: violation

Facts – Relying on a forensic medical certificate, the applicant reported her former husband’s violent behaviour to the authorities. She requested an electronic search of the family computer to be used in evidence for the criminal proceedings, alleging that her former husband had improperly consulted her electronic accounts, including her Facebook account, and that he had made copies of her private conversations, documents and photographs. That request was dismissed on the grounds that any evidence likely to be gathered in this way would be unconnected with the alleged threats and violent acts committed by her former husband. Subsequently the applicant lodged another complaint against her former husband for violation of the confidentiality of her correspondence, which was dismissed as out of time. The public prosecutor’s office imposed an administrative fine on her former husband and discontinued the case, relying on the provisions of the Penal Code governing violence between private individuals and not on those c oncerning domestic violence. The court upheld the conclusions of the prosecutor’s office to the effect that the threats to the applicant had been insufficiently serious to qualify as criminal offences, and that no direct evidence had been produced to show that the injuries sustained by the applicant had been caused by her former husband. As regards the alleged violation of the confidentiality of her correspondence, the court ruled that that matter was unrelated to the subject matter of the case, and that da ta published on the social networks were public.

Law – Articles 3 and 8

(a) The investigation into the ill-treatment – The authorities did not address the impugned facts from the angle of domestic violence. Indeed, the investigation did not take account of the specific features of domestic violence as recognised by the Council of Europe Convention on preventing and combating violence against women and domestic violence . The Court was not convinced that the domestic court’s findings in the present case had had a sufficiently deterrent effect to prevent such a serious problem as domestic violence. Furthermore, while none of the domestic authorities had contested the reali ty and severity of the injuries sustained by the applicant, no evidence had emerged from the investigation capable of identifying the person responsible. The investigating authorities had thus confined themselves to questioning the applicant’s relatives as witnesses, failing to gather any other type of evidence to ascertain the origin of the applicant’s injuries and, possibly, those responsible for inflicting them. In a case concerning alleged acts of domestic violence, the investigating authorities ought t o have taken the requisite action to elucidate the circumstances of the case. Accordingly, even though the legal framework put in place by the respondent State had provided the applicant with some form of protection, the latter had taken effect subsequentl y to the impugned acts of violence and had failed to remedy the shortcomings in the investigation.

(b) The investigation into the violation of the confidentiality of the applicant’s correspondence – In both domestic and international law, the phenomenon of domestic violence is regarded not as being confined to physical violence but as also including psychological violence or harassment. Furthermore, cyberbullying is currently recognised as an aspect of violence against women and girls and can take on variou s forms, including cyber violations of privacy, hacking the victim’s computer and the stealing, sharing and manipulation of data and images, including intimate details. In the context of domestic violence, cybersurveillance is often traceable to the person ’s partner. The Court therefore accepted that such acts as improperly monitoring, accessing and saving the spouse’s or partner’s correspondence could be taken into account  by the domestic authorities when investigating cases of domestic violence. Such all egations of breach of confidentiality of correspondence required the authorities to conduct an examination on the merits in order to gain a comprehensive grasp of the phenomenon of all the possible forms of domestic violence.

No examination had been carrie d out on the merits of the present case. The domestic authorities had failed to take the procedural steps to gather evidence in order to establish the reality or the legal classification of the facts. They had been overly formalistic in dismissing any poss ible connection with the domestic violence which the applicant had already brought to their attention, and had thus disregarded the various possible forms taken on by domestic violence.

The State had therefore failed to honour its positive obligations unde r Articles 3 and 8 of the Convention.

Conclusion : violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See the Factsheets on Domestic violence and Violence against women . See also Opuz v. Turkey , 33401/02, 9 June 2009, Information Note 120; E.S. and Others v. Slovakia , 8227/04, 15 Sep tember 2009, Information Note 122; E.M. v. Romania , 43994/05, 30 October 2012, Information Note 156; Valiulienė v. Lithuania , 33234/07, 26 March 2013, Information Note 161; T.M. and C.M. v. the Republic of Moldova , 26608/11, 28 January 2014; and Bălşan v. Romania , 49645/09, 23 May 2017, Information Note 207)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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