Case of Buturuga v. Romania

1. Introductory remarks and considerations

 

Domestic violence in most modern legal states, including Macedonia, receives the treatment of a more severe qualifying form in crimes against the life and body. For the same reason, in the procedures where there is a suspicion that domestic violence has occurred, or even more, that a criminal offense has been committed during the execution of domestic violence, it is necessary to sharpen the attention and raise the threshold of sensitivity and detail in the actions taken by the competent authorities and institutions in discovering the facts of the case. In finding an appropriate definition that would encompass the meaning of domestic violence, the national regulation is a solid starting point. Recognizing the delicacy of this matter, comparatively speaking, many of the legislations treat and regulate domestic violence in both the criminal and civil spheres. But the European Court of Human Rights in Strasbourg (ECtHR) is also a significant regulatory contributor to the coverage of the definition of domestic violence through the case law that it establishes with its judgments. In the case subject to this analysis, the European Court of Human Rights in Strasbourg (ECtHR/Court) finds that the domestic authorities in Romania did not investigate the applicant's case from the perspective of domestic violence, that is, violence in a marriage for which there were also grounds for suspicion. In addition, the authorities did not at all examine the elements of cyberbullying that were highlighted by the applicant. Such an intertwining of the issues of domestic violence, cyberbullying within the family community, and even a type of gender discrimination of the applicant, viewed from the perspective of insufficient investigative actions taken by Romania to fully expose the case, result in the unanimous conclusion of the Court that there is a violation of the positive obligations of Romania arising from the provisions of Art. 3 and Art. 8 of the European Convention for the Protection of Human Rights (ECHR).

 

2. Facts of the case

 

The main points that the specific case refers to are: the failure of the authorities to approach the criminal investigation from the perspective of domestic violence (and not only as between private individuals), respect for correspondence (here in the sense of electronic communication, documents and data), cyberbullying as one of the aspects of violence against women and girls and as a form of domestic violence, the failure of the domestic authorities to examine the validity of the initiated procedure for cyberbullying as closely related to domestic violence and the need for a comprehensive consideration of the phenomenon of domestic violence in all its forms.

 

2.1. Proceedings before domestic authorities

 

The applicant Buturuga (Gina-Aurelia), a citizen of Romania, submitted the application on 11.11.2015 on the basis of allegations that she was a victim of domestic violence, and the Romanian competent authorities did not take appropriate actions to resolve the case and did not correlate the criminal proceedings she was conducting before the domestic authorities with domestic violence. The applicant was married to a person with the initials M.V. until 30.01.2014. During the marriage, she stated that she was a victim of domestic violence to the extent that she was subjected to physical violence and death threats. The applicant, within the framework of the domestic legal framework and regulation, before bringing the dispute before the ECtHR, actively took actions to protect her rights, initiated criminal proceedings and cooperated with the competent authorities. Within the framework of the national system, the applicant initiated criminal proceedings for two incidents. (1) She pointed out that on 17.12.2013 her husband threatened to kill her and threw her from the balcony in an attempt to show that the applicant tried to kill herself; (2) on 22.12.2013 he hit her on the head and threatened to kill her with an axe. After such actions, on 23.12.2013 the applicant obtained a medical report in which it was stated that she needed three to four days of treatment, and that it is possible that the injuries were sustained on 22.12.2013. In addition to the procedures for these two incidents, the applicant also referred others, such as the one on 09.10.2015 when her ex-husband chased her down the street. On 23.12.2013 and 06.01.2014, the applicant submitted reports to the public prosecutor about the events described above, as well as about the alleged violence and threats she received. Later, she asked to be included in a civil procedure for damages. On 18 March 2014, she additionally requested an electronic search of the home computer in order to obtain evidence in the criminal proceedings, with allegations that her husband illegally accessed her electronic accounts, including Facebook, and that he made copies of her private conversations, documents and photographs. This request was rejected by the police order from 02.06.2014, and with the reasoning that the evidence that would be obtained in this way would not be relevant to the prominent allegations that the husband threatened her and committed violence against the applicant. In the following period (on 13.03.20114), the applicant received a decision by which her husband, among other things, was forbidden to approach her. On September 11, 2014, the applicant filed criminal proceedings against her husband for violating the confidentiality of correspondence. As part of the actions taken by the competent authorities, in order to obtain evidence of the applicant's injuries, her mother, daughter and aunt were interviewed. The applicant objected to the method of obtaining and the incompleteness of this evidence. The public prosecutor stopped the criminal proceedings with a decision on 17.02.2015 based on the criminal code of Romania. He determined a fine for the husband; for the event of 12/22/2013, he pointed out that the applicant did not prove that her husband caused her injuries, and regarding the complaint about violated secrecy of correspondence, he rejected it as untimely and did not take any action. The applicant appealed against this decision, first to the higher public prosecutor, and then to the court, stating that not enough evidence was collected and that the complaint about violated confidentiality of correspondence was not investigated at all. The court confirmed the findings of the public prosecutor. In the proceedings initiated before the ECtHR, the applicant highlights as the most significant allegations that: the competent authorities did not examine the case through the prism of domestic violence-related violence in marriage, but only as violence between private individuals without the necessary degree of qualification; an appropriate procedure was not carried out to reveal the true circumstances of the case, especially considering that the events took place in private rooms and were difficult to prove. The applicant further raises the issue of the passivity of the authorities, who did not take action to investigate the neighbours, monitor communications or use other specific investigative measures. She reiterates and emphasizes that her husband's actions of breaching the confidentiality of correspondence are not only criminal in nature, but are directly related to the attacks, threats and intimidation she alleges.

 

2.2. Proceedings before the ECtHR

 

2.2.1. Applied law

 

What makes this judgment significant is the fact that the ECtHR analyzed the case through the prism of violence against women, domestic violence and cyberbullying as a manifest form or potentially a cause of domestic violence. With that, it creates a precedent for the way of treating this type of cases by the signatory states. It begins with an analysis of domestic Romanian law, but also pays particular attention to the international legal system established by the United Nations through the Committee for the Elimination of Discrimination against Women, the Council of Europe through the provisions of the Convention on the Prevention and Suppression of Violence against Women and Domestic Violence and to the Council of Europe Working Group Report on Cyberbullying; The European Union, again in the direction of a better understanding of the depth of the concept of cyberbullying, as well as the challenge of distinguishing between online and offline violence and their treatment. Regarding the analysis of the case through the perspective of the ECtHR, according to the principle of jura novit curia, the ECtHR examines the case in light of the provisions of Art. 3 and Art. 8 of the Convention. The Court recalls the already well-established principles that the signatory States to the Convention have an obligation to take measures to ensure that persons under their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, even when they are carried out by private individuals. Positive obligations consist of the obligation to take reasonable measures aimed at preventing unlawful treatment of which the authorities know or should have known and the procedural obligation to conduct an effective official investigation where a person raises a complaint of unlawful treatment. Regarding protection from domestic violence, the court reminds that states have positive obligations to establish and implement an effective system that would punish all forms of domestic violence, as well as to provide sufficient protective measures for victims. What is worth noting as an observation is the fact that although cyberbullying can also be observed through the prism of Art. 3 (for example, if it leads to serious emotional stress, fear or psychological distress) and of Art. 8 (for example, in case of violation of privacy and unauthorized sharing of online data), in the analysis of this case, the ECtHR does not make a clear distinction in the elaboration of the violations, but one gets the impression that the analysis is overlapped. When applying the general principles to the circumstances of the specific case, the court makes an analysis by dividing it into two points of examination:

 

2.2.2. The investigation in relation to the illegal action, where it draws the following relevant conclusions:

 

i. The authorities did not examine the circumstances of the case from the perspective of marital violence, while the public prosecutor terminated the initiated procedure exclusively on the basis of the provisions that sanction violence between private individuals, but not on the provisions that punish marital violence more seriously.

ii. Special attention is required in cases of domestic violence and the specific nature of domestic violence must be taken into account in domestic proceedings.

iii. Although the domestic authorities do not deny that the applicant sustained serious injuries, they did not take further steps to find other evidence regarding the perpetrator and the origin of such injuries.

iv. There is no lack of activity on the part of the applicant, especially considering the nature of the procedure, that is, a case of family violence where the psychological effect plays a huge role.

v. This case must be analyzed from the perspective of domestic violence, especially since no evidence was presented by the domestic authorities to the contrary.

 

2.2.3. The investigation regarding the violation of the secrecy of the correspondence, where the most significant conclusions are the following:

 

i. Domestic violence includes psychological violence and stalking.

ii. In the context of domestic violence, cyberbullying is often perpetrated by the victim's intimate partner.

iii. Acts of unlawful monitoring, access or retention of a partner's correspondence may be taken into account by domestic authorities when investigating cases of domestic violence. Allegations of broken correspondence require the authorities to conduct an investigation into the merits of the same in order to comprehensively suppress domestic violence in all its forms.

iv. The domestic investigative authorities should not act too formalistically in the examination of cases of this nature (in the specific case, it finds too much formalism in the actions of the Romanian authorities).

v. The domestic authorities did not conduct the criminal proceedings from the aspect of marital violence. The investigation into the attack is flawed, and the grounds of the complaint about violated confidentiality of correspondence, which according to the court, is closely related to the complaint of violence, were not examined at all. The ECtHR unanimously concludes that it was not acted in accordance with the positive obligations arising from Art. 3 and Art. 8 and finds a violation of these provisions.

 

3. Significance of the analyzed case

 

The case of the applicant Buturuga is, and rightly so, included and singled out in the list of key cases of the ECtHR. It represents a strong precedent on the basis of which the practice of both the Court and the domestic systems of the signatory countries will still be intensified. Hence, in Macedonia as well, it is necessary to first analyze the Court's conclusions, and then to implement them. In the previous item, the most important conclusions of the court were summarized. Here, we conclude with reflections on their practical significance. First of all, the background thread in this case is domestic violence, on top of which are added the crimes of assault and threats against the applicant, and then cyberbullying. Domestic violence is an extremely sensitive matter, where the victim suffers a whole series of negative consequences. Among them are psychological burdens, stress and fear, which often cause such acts not to be reported at all. For the same reason, where there is a report of domestic violence, it is of the utmost importance that the responsible authorities react with an increased degree of attention and examine the report in detail, comprehensively and broadly. In that sense, even if another crime is primarily reported, and there is a suspicion that domestic violence has been committed, the crime itself should be observed from the perspective of domestic violence. In this case, the court determines that the Romanian authorities acted too formalistically. This means that although there was formally a legal framework in Romania that provided some protection for the applicant, it was still not sufficient to fully protect the rights, but the authorities should have taken additional actions to clear up the case. The latter is relevant for all signatory countries. Although legal regulation sometimes appears to be solid, its implementation in practice can be flawed. In the specific case, the court even examines whether the way in which the applicable regulation was applied by the authorities is so defective that it constitutes a violation of the provisions of the Convention. Thus, even with existing regulation, again its implementation is crucial. In these situations, the primary role must be played by the competent authorities who, through their work, would ensure that each case is well managed and the victims are protected. Furthermore, although the ECtHR does not distinguish by which offense it subsumes cyberbullying here, the conclusions in this section are also very important, especially considering that this type of violence is increasingly common. Therefore, the closer definition of the term itself, which is undoubtedly being done here , contributes to its better recognition and suppression in the future. In addition, the key conclusion is that cyberbullying can be subsumed under domestic violence, and in certain cases it can be the cause of such violence (Here, the applicant states that because of the cyber violence committed, i.e. the unauthorized access to her electronic conversations and data, later the ex-husband also resorted to physical violence). The conclusion was also made that the actions of illegal monitoring, access or preservation of correspondence of the partner should be taken into account by the domestic authorities when investigating cases of domestic violence. Connecting this with the previously said, this element of domestic violence should be treated in correlation with it, and not as a separate phenomenon. Only by examining the "big picture" in such situations can proper and full protection of the rights protected by both the Convention and domestic laws be achieved.