Communicated on 8 July 2019

FIFTH SECTION

Application no. 17496/19 Iryna Mykolayivna LEVCHUK against Ukraine lodged on 20 March 2019

STATEMENT OF FACTS

The applicant, Ms Iryna Mykolayivna Levchuk , is a Ukrainian national, who was born in 1982 and lives in Rivne.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In February 2008 the applicant and O.L., her husband, were allocated a social flat to occupy as protected tenants together with their triplets born in 2007 and the applicant ’ s son, born in 2002.

According to the applicant, O.L. frequently drank, and, under the influence of alcohol, provoked conflicts, harassed and threatened her and the children, and sometimes resorted to physical violence against her. On various occasions, the applicant, scared of his violent and unpredictable conduct, escaped from home with the children to seek refuge with her friends or relatives.

On 18 March 2009 the Rivne Regional Forensic Bureau certified that the applicant had a broken nose and haemorrhages around her eyes. According to the applicant, these injuries resulted from one of her conflicts with O.L. It is not clear from the case file, whether any formal proceedings were instituted in respect of this incident.

On 13 January 2011 the applicant ’ s acquaintance, S.L., lodged a complaint with the Rivne town police, informing them that O.L. had hit the applicant during a household conflict. The police refused to institute criminal proceedings on the ground that there was no corpus delicti in O.L. ’ s actions. This decision was not appealed against.

On 10 June 2015 the applicant herself lodged a criminal complaint with the police, informing them that at about 9 p.m. on 31 May 2015 O.L. had kicked her during a household conflict.

On 11 June 2015 criminal proceedings were initiated against O.L. under Article 125 of the Criminal Code (“CC”) for having hurt the applicant.

On 16 June 2015 the Rivne Regional Forensic Bureau certified that the applicant had a haemorrhage on her right thigh.

On 23 September 2015 the applicant ’ s and O.L. ’ s marriage was dissolved by a divorce. Custody of their triplets was given to the applicant. After the divorce, all the former family members remained living in the same social flat.

On 16 October 2015 the Rivne City Police closed the criminal proceedings initiated in June against O.L. because the applicant had withdrawn her complaint. The relevant decision stated that, while there was an appearance that O.L. ’ s conduct fell within the ambit of Article 125 of the CC, in view of the applicant ’ s refusal to pursue her complaint as the injured party, the case materials would be directed to a different police department for deciding whether O.L. should be subjected to administrative liability. It appears that no further decision was taken in respect of this incident.

On 23 November 2015, 2 and 23 February 2016 the applicant made further calls to the police complaining that O.L. was harassing and mistreating her at their home.

On 18 March 2016 the Chief of the Rivne Police decided that O.L. ’ s actions on 23 February 2016 (notably, badmouthing and threatening the applicant and piercing a blanket with a knife) could be categorised as psychological harassment. He charged O.L. with the administrative offence of domestic violence under Article 173-2 of the Code of Administrative Offences (“CAO”) and referred the case to the Rivne Town Court. It appears that no further decision was taken in respect of this police report.

On 22 March 2016 a commission comprised of representatives of the police, as well as State and municipal family affairs officials, visited the applicant ’ s flat to examine her living conditions and discuss the family situation. They noted that O.L. was not available in person during their visit. Subsequently, he rejected a telephone invitation to come for a conversation to the City Social Centre for Families, referring to being very busy at work.

On an unspecified date the applicant lodged a fresh complaint with the police, alleging that at about 10 p.m. on 13 April 2016 O.L. had engaged in a new violent outburst. Notably, he had cursed, threatened and pushed her.

On 18 April 2016 the Rivne Regional Forensic Bureau certified that the applicant had haemorrhages on her right wrist, arm, and leg and a sprain of aponeurosis on the right foot.

On 5 July 2016 the Rivne Town Court found that on 13 April 2016 O.L. had committed an act of domestic violence within the meaning of Article 173-2 of the CAO. The court further decided that it was possible to relieve him from formal liability and subject him to an oral reprimand only, in view that the applicant had been so requesting, as the parties had already come to terms.

In the meantime, on 22 June 2016 the applicant instituted civil proceedings in the Rivne Town Court seeking to evict O.L. from their social flat. Referring to Article 116 of the Housing Code, she alleged that cohabitation with him was impossible, as he was abusing alcohol, mistreating, threatening and harassing her and the children, disrespecting their interests and having violent outbursts. Continuing to live together with him placed her and her minor children in the constant risk of being subjected to psychological harassment and physical violence. The applicant also argued that eviction would not place O.L. in a precarious situation, as he co-owned a flat in town with his mother. She also submitted that criminal proceedings under Article 125 of the Criminal Code were pending against O.L. at the material time. [1]

During the hearings, several witnesses questioned by the court confirmed the applicant ’ s version of events and testified that O.L. had been abusing alcohol and mistreating his former spouse and children. Several others, on the contrary, suggested that the conflicts had been provoked by the applicant, who wanted to get rid of O.L. and gain full control over the flat. These witnesses also alleged that O.L. cared about the children and was a thoughtful father.

On 4 April 2017 the Rivne Town Court allowed the applicant ’ s claim and ordered O.L. ’ s eviction.

O.L. appealed. He noted that the applicant had been provoking conflicts in order to separate him from the children and obtain pecuniary benefits from the flat. For the same reason, she had been exaggerating the situation and submitting vexatious complaints with accusations, not supported by evidence. More so, Article 116 of the Housing Code envisaged eviction of a resident, whose misconduct was systematic and in whose respect correctional measures had proved to be ineffective. In the meantime, in his case, there was no evidence of systematic conflicts and several witnesses had testified in his favour. While occasionally some fights had taken place, all the evidence against him pertained to either 2011 or 2015-16. No fresh evidence of any conflicts between him and his former spouse had been provided.

On 14 June 2017 the Rivne Regional Court of Appeal quashed the Town Court ’ s judgment and rejected the applicant ’ s claim, having found that there were no grounds for applying such a radical measure as eviction and the conditions required by Article 116 of the Housing Code had not been fulfilled. The relevant part of the court ’ s ruling read as follows:

“It is apparent from the case-file materials that on a number of occasions the applicant called the police to her home address and accused the defendant of having committed unlawful acts in her respect and in respect of her family members; however, the fact that [O.L.] had systematically breached the rules of co-habitation and had been subjected to liability [on this account] has not been demonstrated.

...

Off and by itself, the very fact of addressing the competent authorities with complaints concerning breach of rules of living together without application to the party concerned of correctional measures by these bodies is not a ground for eviction.

Having evaluated every piece of evidence separately and jointly, the judicial board concludes that evidence provided by the parties demonstrates existence of hostile, conflictual relations between former spouses.

In such circumstances, the judicial board considers that the grounds for applying to the defendant such an extreme measure as eviction are insufficient. At the same time, the judicial board considers it needful to warn [O.L.] that it is necessary to change his attitude towards the rules of living together with the former members of his family. ...”

The applicant appealed on points of law. She noted, in particular, that O.L. had already been found guilty of domestic violence under administrative procedure and that at the material time criminal proceedings were pending against him under Article 125 of the CC for having hurt her. She argued that O.L. had not corrected his conduct or attitude and that living with him exposed her and the children to a considerable risk of harassment and violence. She also reiterated that he had another dwelling available, being co-owner of a flat in the same town.

On 20 August 2018 the Supreme Court dismissed the applicant ’ s appeal on points of law.

On 11 October 2018 this decision was sent to the applicant by post.

Article 125 of the Code, insofar as relevant, reads as follows:

Article 125. Intentional minor physical injury

“ 1. Intentional minor physical injury – shall be punishable by a fine of up to fifty non-taxable minimal incomes of citizens or public works for up to two hundred hours, or correctional labour for up to one year. ...”

Article 173-2 of the Code, which is the relevant provision, as worded in the material time, read as follows:

Article 173-2. Act of domestic violence, failure to abide by restraining order or evasion from correctional programme

“Commission of an act of domestic violence, that is, intentional commission of any actions of physical, psychological or economical nature (use of physical force, which has not resulted in physical pain and has not caused physical injuries; threats, insults, stalking, deprivation of dwelling, food, clothes, other effects or funds, to which the victim is entitled by law, etc.) as a result of which there could be or was caused harm to physical or psychical health of the victim, as well as failure to abide by a restraining order by a person, in whose respect it was issued, [or] evasion from correctional programme by a person, who committed an act of domestic violence, -

shall be punishable by public works for a term from thirty to forty hours or an administrative arrest for up to seven days. ...”

Article 116 of the Code, insofar as relevant, reads as follows:

Article 116. Eviction without allocation ... of other dwelling

“If the tenant, members of his/her family, or others living with him/her ... systematically ... break the rules of living together, making it impossible for the others to live together with them in the same flat or house, and if the measures of prevention and public influence did not bring any result, at the request of ... interested persons those responsible shall be evicted, without allocating them another dwelling. ...”

A summary of the relevant international materials has been made in the case of Opuz v. Turkey (no. 33401/02, §§ 72-86, ECHR 2009) and Eremia v. the Republic of Moldova (no. 3564/11, §§ 29-37, 28 May 2013).

In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia , that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.

The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’ s rights are protected during proceedings.

With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.

COMPLAINTS

The applicant complains that by rejecting her eviction claim against O.L. the domestic judicial authorities exposed her and her minor children to constant risk of domestic harassment and violence and so breached their rights to respect for home and family life under Article 8 of the Convention.

She also complains under Article 6 of the Convention that the judgments by the Appeal and Supreme Courts did not provide an adequate response to her essential argument concerning the existence of this risk.

Finally, she complains under Article 13 of the Convention that her attempt to protect herself and the children from the risk of harassment and violence by way of evicting her former husband from the flat has proved to be ineffective in view of the manner in which the domestic courts interpreted and applied domestic law.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 8 of the Convention in the present case? In particular, did the authorities satisfy their positive obligations under the above-mentioned provision to ensure the applicant ’ s and her children ’ s protection from the risk of harassment and violent acts by O.L.?

2. Did the applicant have a fair hearing in the determination of her civil rights in accordance with Article 6 § 1 of the Convention? In particular, did the domestic courts provide sufficient reasoning for rejecting her argument that co-habiting with O.L. placed her and her minor children at persistent risk of harassment and violence?

[1] . No documentary evidence in this respect has been submitted to the Court.