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    You are here: BAILII >> Databases >> European Court of Human Rights >> M.T. and S.T. v Slovakia - 59968/09 [2012] ECHR 1043 (29 May 2012)
    URL: http://www.bailii.org/eu/cases/ECHR/2012/1043.html
    Cite as: [2012] ECHR 1043
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    THIRD SECTION

    DECISION

    Application no. 59968/09
    M.T. and S.T.
    against Slovakia

    The European Court of Human Rights (Third Section), sitting on 29 May 2012 as a Chamber composed of:

    Josep Casadevall, President,
     Corneliu Bîrsan,
     Egbert Myjer,
     Ján Šikuta,
     Ineta Ziemele,
     Nona Tsotsoria,
     Kristina Pardalos, judges,
    and Santiago Quesada, Section Registrar,

    Having regard to the above application lodged on 28 October 2009,

    Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

    Having deliberated, decides as follows:

    THE FACTS

  1. The first applicant, M.T., is the mother of the second applicant, S.T. They are Slovak nationals, who were born in 1959 and 1990 respectively, and live in Košice. They were granted anonymity under Rule 47 § 3 of the Rules of Court.

  2. The applicants were represented before the Court by Ms I. Rajtáková, a lawyer practising in Košice.

  3. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

    4. A.  The circumstances of the case

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

    1.  The applicants’ family background

  4. In 1983 the first applicant married A. In addition to the second applicant, another child, B., was born in the marriage, in 1986.

    5. The family lived together in one flat.

  5. The social services were involved with the family in 1995 when A. appears to have requested that the children be entrusted to his care and custody.

  6. The care and custody of the children was subject to a decision of 5 February 1996, which appears to have entrusted the children into the care and custody of the first applicant.

  7. On 22 June 1996 there was an altercation between the first applicant and A., in the course of which the first applicant suffered bodily injuries. She was unable to work until 2 July 1996. The incident was investigated on the suspicion that the actions of A. had amounted to a criminal offence. However, no charges were brought against him owing to the absence of the first applicant’s consent, this being a prerequisite for his prosecution.

  8. Also in 1996 A. filed for divorce.

  9. On 4 March 1997 A. again applied for the children to be entrusted to his care and custody.

  10. From 21 to 26 August 1997 and from 2 September to 3 December 1997 the first applicant voluntarily received in-patient psychiatric treatment for alcoholism.

  11. On 19 December 1997 the Košice I District Court (Okresný súd) approved a parental agreement between the first applicant and A., pursuant to which the second applicant and B. were to be in the care and custody of A. and the first applicant would contribute to their maintenance.

  12. In 1999 A. withdrew his petition for divorce, as a result of which the proceedings were discontinued.

  13. On 24 May 2002 the first applicant filed for divorce.

  14. On 26 March 2003 the District Court issued an interim measure forbidding A. to enter the flat in which the family lived pending the outcome of the proceedings aimed at excluding him from using the flat with permanent effect.

    15. Having been quashed on appeal, the interim measure was reinstated by the District Court on 17 June 2003, and eventually became final and binding. No information has been made available concerning any further progress in or the outcome (if any) of the proceedings on the merits of this matter.

  15. Meanwhile, on 7 April 2003, at the first applicant’s request, the District Court entrusted her with the care and custody of the children and ordered A. to contribute to their maintenance.

  16. On 8 April 2003 A. left the family household.

  17. In the divorce proceedings, on 15 April 2004, a sworn expert in psychology, C., filed a report recommending, inter alia, that the second applicant be entrusted to the care and custody of the first applicant. At the same time, however, she did not recommend that the second applicant’s contact with A. be restricted. The parties did not contest the report.

  18. On 8 September 2004 the District Court issued a decree of divorce, entrusted the second applicant to the care and custody of the first applicant and ordered A. to contribute to the second applicant’s maintenance.

    19. 2.  Impugned actions of A.

  19. In the judgments mentioned below, courts at two levels of jurisdiction established, inter alia, the following facts:

    20. “At unspecified times between 1996 and 8 April 2003, excluding the period between August and December 1997 when [the first applicant] was receiving in-patient treatment for alcohol dependency, [A.] repeatedly mistreated [the applicants] and [B.], giving them orders about when to go to sleep, ordering them or forbidding them to carry out certain activities, waking the children up at 7 a.m. even on days when they did not have to go to school and strictly regulating what they were to eat and in what quantity.

    ...

    [A.] restricted [the first applicant] from doing grocery shopping, prohibited her from eating food bought by him, swore at her, humiliated her and undermined her authority in front of the children. ...

    [A.] ridiculed and humiliated [the second applicant] by swearing at her in a vulgar way which, in an incident in February 2003 when she punched [B.] breaking the glass door of a cupboard as a result, made [the second applicant] tremble and wet her pants, on which A. commented ‘look how scared you got, you half murderer, you wet [your pants]’.

    On an unspecified date in October 2003, following an argument, [A.] threatened to hit the [first applicant] with a grinding machine if she didn’t be quiet.”

    3.  Prosecution of A.

  20. On 1 May 2003, following the applicants’ criminal complaint, A. was charged with an offence of abuse of a close person or of a person in respect of whom he held a position of trust (týranie blízkej osoby a zverenej osoby) within the meaning of Article 215 §§ 1 ((a) and (b)) and 2 ((c) and (d)) of the Criminal Code (Law no. 140/1961 Coll., as applicable at the relevant time) on the factual basis described above.

  21. On 5 October 2004 the Public Prosecution Service (“the PPS”) indicted A. to stand trial in the District Court on these charges.

  22. On 6 December 2004 A. was acquitted at first instance. However, the judgment was quashed on 17 March 2005 by the Košice Regional Court (Krajský súd) following an appeal by the PPS, and the matter was remitted to the District Court for additional evidence to be gathered.

  23. On 10 November 2008 A. was again acquitted and a subsequent appeal by the PPS was dismissed on 29 January 2009.

  24. The courts examined oral evidence, which was given at several hearings both before the District Court and the Regional Court, including on 28 May, 23 June and 27 August 2008, by A., the applicants, B. and three other witnesses. The courts also examined documentary evidence and expert evidence, as described below, including the contents of the case file concerning the divorce and the expert evidence contained therein.

  25. The courts established the facts as mentioned above, but came to the conclusion that the behaviour of A., who had one previous conviction for a violent offence, had in the present case not constituted domestic violence.

  26. In reaching this conclusion, the courts established that although A. had not been suffering from a mental disorder such as to impair his capacity to understand and control his behaviour, his actions had been influenced by his distorted perception of the events, which he had not been in a position to see objectively, as he had been acting from the perspective of his subjective attitude that he thought was right. A. had not been motivated by a desire to hurt anyone, but rather to address the family’s destitute situation.

  27. The courts also found that, in assessing the impugned events, it had to be taken into account that the family situation had been unpleasant since 1995, which was partly due to the first applicant’s drinking, and that the conflicts between 2000 and 2003 had had the family’s destitute financial situation as a background.

  28. The courts also observed that since 1 September 1999 the applicable law specifically provided that domestic violence was to be considered as abuse under Article 215 of the Criminal Code. In that context, without going into any detail, they referred to the United Nations Convention on the Rights of the Child (1989), the United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), Recommendation of the Committee of Ministers of the Council of Europe Rec(2002)5 and an explanatory memorandum thereto.

  29. The courts found that the regime imposed by A. on the family was justified in view of its financial standing and B.’s obesity. Although swearing at and punishing the second applicant was not an educational method to be approved of, it did not amount to abuse in legal terms.

  30. However, the restrictions imposed on the first applicant as regards the purchase and consumption of food amounted to economic violence, in particular in so far as the first applicant had neither had a job nor any other independent source of income.

  31. It was observed that the first applicant suffered from recurring depression and that the second applicant had a temporary behavioural disorder in relation to family.

  32. Nevertheless, their conditions were not necessarily the result of A.’s authoritative behaviour and, as far as the second applicant was concerned, it could also have been caused by the bad family situation, the first applicant’s alcoholism and the divorce of the second applicant’s parents.

  33. The Court of Appeal also specifically observed that, when the first applicant was hospitalised in 1997, A.’s authoritative tendencies had had the perfect opportunity to manifest themselves. However, they had not and he had even been entrusted with the care and custody of the children.

  34. The courts concluded that A. had had no knowledge that his behaviour could have had negative psychological consequences on the members of his family. He therefore could not have directly intended such consequences.

  35. As the offence under Article 215 of the Criminal Code presupposed criminal intent and no such intent was present, the actions of A. did not constitute a criminal offence.

    36. 4.  Constitutional complaint

  36. The applicants then brought a complaint under Article 127 of the Constitution to the Constitutional Court (Ústavný súd) arguing that the outcome of the criminal proceedings was incompatible with their rights protected under Articles 3 and 8 of the Convention and their constitutional counterparts. They submitted, inter alia, that the ordinary courts had confused the legal categories of intent and motive and had thereby reached an absurd conclusion where the arguably positive motivation of the accused had made him immune to punishment for his unlawful actions while, at the same time, there was nothing in the expert evidence suggesting that his individual criminal liability should be restricted on grounds linked to his mental condition. In their view, the actions of the accused had been committed with what amounted to at least indirect intent, which was sufficient for making his actions contrary to criminal law, that is to say that he had been aware that his actions might have been contrary to criminal law and had acquiesced in them being such.

  37. On 7 July 2009 the Constitutional Court declared their complaint inadmissible as manifestly ill-founded. It reiterated that it was not its task to review assessments of the facts and application of the law by the ordinary courts, and found that the Court of Appeal had supported its decision with adequate and comprehensible reasoning that was constitutionally acceptable.

    38. 5.  Harm suffered by the applicants

  38. According to the finding of a psychologist, D., on an unspecified date in 2003, the second applicant was suffering from post-traumatic stress disorder owing to A. constantly humiliating, threatening, shouting, and swearing at her.

  39. In a report of 15 April 2004, in the context of the divorce proceedings (see paragraph 17 above), another psychologist, C., concluded, inter alia, that the emotional problems of the second applicant in relation to A. were the consequence of the latter’s abrasive behaviour, psychological maltreatment and manifestations of physical aggression towards the members of the family.

  40. In two separate reports, of 25 and 31 October 2005, in the context of the criminal proceedings against A., two psychiatrists, E. and F., made conclusions that can be summarised as follows.

    41. At the time of the events underlying the indictment, the second applicant was suffering from a family-related behavioural disorder. A.’s behaviour towards her had been of a mocking nature rather than aggressive.

    The first applicant had a history of psychiatric treatment for a periodic depressive disorder of medium gravity since 1996. It could be “confirmed with certainty that the recurrence of the disorder [was] due to unfavourable factors in the family, as a result of tyrannical behaviour by [A.] towards her and the children”.

    B.  Relevant domestic law and practice

    1.  Constitutional Court Act (Law no. 38/1993 Coll., as amended)

  41. Section 53 deals lays down the rules in respect of ordinary remedies to be used prior to an individual complaint under Article 127 of the Constitution. It provides:

    42. “1.  A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute.

    2.  The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under sub-section 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition owing to reasons worthy of particular consideration.”

    2.  Criminal Code of 1961 and relevant jurisprudence

  42. At the relevant time the offence of abuse of a close person or of a person in respect of whom the offender holds a position of trust was defined by Article 215 of the 1961 Criminal Code (see paragraph 20 above).

  43. The offence could be committed against a person who was close to, or was in the care or education of, the perpetrator, inter alia, by any of the following: beating, kicking, punching, causing wounds of various kinds, bullying, contemptuous treatment, threatening, causing fear or stress, or any other behaviour endangering physical and psychological well-being, denying food, rest or sleep and unjustified restriction on access to property.

  44. In order for such behaviour to constitute the offence, it had to be committed intentionally (Article 3 § 3, in conjunction with Article 215).

  45. The notion of intent was defined in Article 4 of the Criminal Code. Intent could be direct, that is to say when the perpetrator wanted to violate or endanger the interest protected under the Code. Intent could also be indirect, that is to say when the perpetrator was aware that his behaviour could cause such a violation or endangerment and was acquiesced in it.

  46. In its decision (uznesenie) of 22 November 1995 in case no. Tzo-V 4/95, the Supreme Court (Najvyšší súd) held that the negligent nature of the accused’s behaviour in respect of the possible impact on the life and limb of another did not predetermine of itself that the accused was acquiesced in it.

  47. In its decision in case no. 7To 6/02 the Supreme Court held that acquiescence in connection with indirect intent expresses an active voluntary element in the offender’s attitude towards causing the consequence that is of relevance in criminal law, that is to say a consequence envisaged (and expressed) in a specific provision of the Criminal Code. Acquiescence of the offender at the time of the offence in the possible consequences is hinted at by the character of the offender’s actions, that is to say the intensity of the aggression, its duration, physical disposition of the victim and the offender, the part of the victim’s body targeted by the attack, the number of attacks and the like, as well as the behaviour of the offender after the act (as a subsidiary consideration), and whether the offender counted on a specific circumstance which, if materialised, was capable of preventing the consequence.

  48. In its judgment (rozsudok) in case no. 3Tz 11/2011 the Supreme Court held that individual criminal liability was based exclusively on culpability, which must include all features characterising the objective side of a criminal offence, that is to say also the causal link between the actions of the offender and the consequences of the offence.

    49. 3.  Civil Code (Law no. 40/1964 Coll., as amended) and relevant jurisprudence

  49. For the relevant provisions, which concern protection of personal integrity and its vindication, see, for example, the Court’s judgment in Ringier Axel Springer Slovakia, v. Slovakia (no. 41262/05, § 55, 26 July 2011).

  50. In its judgment of 19 April 1994 in case no. 1 Co. 25/94 the Supreme Court held that the fact that a person’s behaviour had as an act (skutok) been subject to criminal proceedings or civil proceedings did not preclude that subsequent reactions of other persons to that behaviour be subject to proceedings for protection of personal integrity under Articles 11 et seq. of the Civil Code. The case concerned an action for protection of personal integrity in connection with the claimant’s dismissal from his job on account of fraud of which he had ultimately been acquitted.

  51. In a judgment of 20 June 2007 in case no. 11 C 99/2006 the Čadca District Court adjudicated on an action for protection of personal integrity by a divorced woman against her former husband. The court ordered the defendant to refrain from interfering with the claimant’s personal integrity (threats to life and limb and verbal insults) and not to go within thirty metres of her.

    52. 4.  Code of Civil Procedure (Law no. 99/1963 Coll., as amended)

  52. Articles 74 et seq. regulate interim measures. More precisely, the relevant part of Article 76 provides that:

    53. “1.  A court may issue an interim measure ordering a party to proceedings in particular to:

    ...

    (f) refrain from doing something or to suffer something being done.

    (h) temporarily refrain from entering the home of the person towards whom [the party] is suspected of [having behaved] violently.

    ...

    3.  When issuing an interim measure, the court shall request that the claimant lodge an action with a court of law or arbitral tribunal within a time-limit determined by the court; where the proceedings may be commenced without an action being lodged, the court shall issue a decision to commence them.”

    C.  Relevant international material

  53. For a summary of relevant international material see the Court’s judgment in Opuz v. Turkey, no. 33401/02, §§ 72-86 , ECHR 2009 ..., in particular the Committee of Ministers of the Council of Europe’s Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence.

  54. The Convention on preventing and combating violence against women and domestic violence, which was adopted by the Council of Europe Committee of Ministers on 7 April 2011, has not entered into force so far. Although not yet ratified, it was signed by Slovakia, on 11 May 2011.

    55. COMPLAINTS

  55. The applicants complained that the outcome of the criminal proceedings against A. had been incompatible with their rights protected under Articles 3 and 8 of the Convention, taken in conjunction with Article 1 of the Convention.

    56. THE LAW

  56. The applicants alleged a violation of Articles 3 and 8 of the Convention, taken in conjunction with Article 1 of the Convention.

    57. The Court considers that, in the particular circumstances, the present case falls to be examined under Articles 8 and 13 of the Convention, the relevant part of which reads as follows:

    “Article 8

    1.  Everyone has the right to respect for his private and family life, his home ...

    2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

    “Article 13

    Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

    A.  Domestic remedies

  57. Relying on the above-cited relevant domestic practice, the Government first of all objected that the applicants had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention in that they had failed to assert their rights at the domestic level by way of an action for protection of personal integrity under Articles 11 et seq. of the Civil Code. In reply, the applicants disagreed.

  58. The Court reiterates that, in certain situations, effective deterrence against attacks on the physical integrity of a person requires efficient criminal-law mechanisms to ensure adequate protection (see Sandra Janković v. Croatia, no. 38478/05, § 36, 5 March 2009, with further references). The Court is however of the opinion that this position is in principle not limited to instances of physical violence but, especially in cases of domestic violence such as the present case, it may also extend to psychological violence.

  59. The Court also reiterates that where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant’s position, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention. Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required to have tried others that were also available but probably no more likely to be successful (see Adamski v. Poland (dec.), no. 6973/04, 27 January 2009, with further references).

  60. In the present case, the applicants asserted their rights by way of a criminal complaint and participation in the ensuing criminal proceedings against A (see paragraphs 20 et seq. above), as well as a constitutional complaint (see paragraphs 36 and 37 above).

  61. In that context, the Court notes that the Constitutional Court, as the supreme authority charged with the protection of human rights and fundamental freedoms in Slovakia, had jurisdiction to examine the applicants’ complaint and to provide redress to them if appropriate (see, mutatis mutandis, Lawyer Partners a.s. v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, § 45, ECHR 2009 ..., with further references), and that such examination is subject to an exhaustion of ordinary remedies requirement under section 53 (see paragraph 41 above).

  62. For that matter, the Court notes that the Constitutional Court entertained the applicants’ complaint without first requiring them to exhaust the remedy now relied on by the Government.

  63. The Court further observes that in the case of Hajduová v. Slovakia (no. 2660/03, §§ 36-38, 30 November 2010) it examined and rejected the effectiveness within the meaning of Article 35 § 1 of the Convention of an action for protection of personal integrity under Articles 11 et seq. of the Civil Code in a situation that was found to have amounted to the authorities’ failure, contrary to Article 8 of the Convention, to comply with their statutory obligation to order the detention of Ms Hajduová’s former husband in an institution for psychiatric treatment, following his criminal conviction for having abused and threatened her.

  64. In view of all the material at its disposal, and having regard to the particular vulnerability of victims of domestic violence and the need for active State involvement in their protection (see Hajduová v. Slovakia, cited above, § 41, with further references), as well as the object and purpose of the Convention to guarantee rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999 I), the Court concludes that the applicants were not required under Article 35 § 1 of the Convention to make use of the remedy referred to by the Government. The Government’s objection of non-exhaustion of domestic remedies must therefore be dismissed.

    65. B.  Article 8 of the Convention

    1.  Parties’ arguments

  65. The applicants argued in particular that although the courts had correctly established the facts concerning the behaviour of A., they had failed to draw appropriate conclusions in that their findings as to the subjective perceptions and motive of A. had not been supported by any evidence, that they were irrelevant to the question of his criminal intent and that they were arbitrary.

  66. The Government considered that the treatment to which the applicants had been exposed had not reached the threshold of gravity under Article 3 of the Convention.

  67. Moreover, the Government held the view that the domestic courts’ interpretation and application of the law had been in full compliance with both established domestic practice and the requirements under Article 8 of the Convention.

  68. In reply, the applicants pointed out that under paragraphs 34 and 35 of the Appendix to the Committee of Ministers of the Council of Europe’s Recommendation Rec(2002)5 of 30 April 2002 “[m]ember states should ensure that criminal law provides that any act of violence against a person constitutes a violation of that person’s physical, psychological and/or sexual freedom and integrity, and not solely a violation of morality, honour or decency; [and] provide for appropriate measures and sanctions in national legislation ... penalis[ing] any abuse of the position of a perpetrator, and in particular of an adult vis-à-vis a child.” In that respect, the applicants also relied on the Court’s judgment in the case of X and Y v. the Netherlands (26 March 1985, § 27, Series A no. 91).

  69. The applicants also submitted that the facts of the case clearly fell within the ambit of Articles 3 and 8 of the Convention, citing the definition of “violence against women” under the above-mentioned Recommendation.

  70. Lastly, the applicants contended that the nature of A.’s motivation had no legal relevance for the nature of his criminal intent.

    71. 2.  The Court’s assessment

  71. The Court observes, first of all, that there is no doubt that the events giving rise to the present application pertain to the sphere of application of Article 8 of the Convention (see, for example, A v. Croatia, no. 55164/08, § 58, 14 October 2010).

  72. The Court reiterates the following relevant principles, as summarised in its judgment in the case of Hajduová v. Slovakia (cited above, §§ 45-47, with further references):

    73. - While the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations between individuals. Children and other vulnerable individuals, in particular, are entitled to effective protection.

    - The concept of private life includes a person’s physical and psychological integrity. Under Article 8 States have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals.

    - Victims of domestic violence are of a particular vulnerability and the need for active State involvement in their protection has been emphasised in a number of international instruments.

    - The Court’s task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods for protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation.

  73. The Court will therefore examine whether Slovakia, in handling the applicants’ case, has been in breach of its positive obligation under Article 8 of the Convention (see, for example, Hajduová v. Slovakia, cited above, § 47; A v. Croatia, cited above, § 61; and Sandra Janković v. Croatia, cited above, § 46).

  74. Turning to the facts of the present case, the Court observes that the applicants have not as such criticised the adequacy of the investigation or the ensuing criminal proceedings conducted by the domestic authorities against A. The thrust of the applicants’ complaint lies rather in their discontent with the domestic courts’ acquittal of A. and, in particular, with their assessment of his criminal liability. The Court considers that this complaint has to be examined against the applicants’ family background as a whole.

  75. The marriage finally broke down in 2003, after the first applicant had filed for divorce in 2002, when the care and custody of the second applicant and her brother was entrusted to the first applicant, on 7 April, and when A. left the family’s flat a day later.

  76. It is also to be noted that, on 26 March 2003, by way of an interim measure, A. was forbidden to enter the flat and that, after having first been quashed on appeal, this interim measure was eventually reinstated on 17 June 2003 and became final and binding.

  77. The Court considers that, from the perspective of Article 8 of the Convention, the assessment of the authorities’ response to the impugned behaviour of A. has to be carried out with reference to the framework outlined above. In particular, the Court finds it of relevance that A. was excluded from the family’s flat as a matter of law, that he actually left the family’s home and that there were never any allegations that he would return, threaten or harm the applicants again. While it is not entirely clear when the applicants filed their criminal complaint against him, there has neither been any indication or allegation that the complaint was not dealt with with adequate expedition. In fact, it would appear that criminal charges were brought against A. very promptly, on 1 May 2003.

  78. As to the specific question of A.’s criminal liability, the Court observes, first of all, that the criminal charges against him have been examined twice by courts at two levels of ordinary jurisdiction, their last decision then being scrutinised by the Constitutional Court. In adjudicating on the case, the domestic courts took and assessed comprehensive documentary, oral and expert evidence, including expert evidence from other court proceedings in relation to the family’s break-up.

  79. Against the rather complicated family background, it was found that, in the particular circumstances of the case, no intention to commit the offence of abuse a close person or a person in respect of whom A. held a position of trust could be proven.

  80. The impugned conclusion appears to be fully consistent with the relevant judicial practice (see paragraphs 46 to 48 above); no argument to the contrary has been advanced by the applicants.

  81. The Court reiterates that it is not its role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations (see, mutatis mutandis, Opuz v. Turkey, cited above, § 165).

  82. The Court further reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140, and Streletz, Kessler and Krenz v. Germany [GC], no. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).

  83. Furthermore, the Court reiterates that the right to institute criminal proceedings and to secure the conviction of a third party as such is not a right which is included among the rights and freedoms guaranteed by the Convention (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 I, with further references, and Liģeres v. Latvia, no. 17/02, § 57, 28 June 2011) and that there is no absolute right to obtain the prosecution or conviction of any particular person (see Szula v. the United Kingdom (dec.), no. 18727/06, 4 January 2007).

  84. From that perspective, and being guided by the principle of subsidiarity, the Court considers that, rather than a strict requirement for a criminal conviction of A., the crucial criterion for the assessment of the present case in its specific circumstances is the overall effectiveness of the protection rendered by the State to the Convention rights of the applicants.

  85. The Court also considers that the carrying out of fully fledged criminal proceedings against A. must have had a certain general as well as individual deterrent effect, the combination of which with the interim measure referred to above resulted in no further affront by A., while the authorities involved cannot be reproached for any lack of diligence (compare and contrast, mutatis mutandis, Opuz v. Turkey, cited above, §§ 167 and 169, and A. v. Croatia, cited above, § 78).

  86. Furthermore, the Court is of the opinion that, in weighing up the adequacy of the authorities’ response to the impugned behaviour of A., regard has to be had to the family’s generally disagreeable situation.

  87. In view of all the above considerations, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a failure on the part of the authorities in any positive obligation to secure to the applicants their rights under Article 8 of the Convention. Accordingly, the relevant part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

    88. C.  Article 13 of the Convention

  88. Leaving aside the question whether the applicants had any “arguable claim” of a violation of any other provision of the Convention for the purposes of Article 13, and having examined the case in the light of the parties’ arguments, the Court finds that no issue arises under that provision because the applicants did have at their disposal, and in part actually made use of, the set of criminal-law and civil-law remedies referred to above.

    89. It follows that the remainder of the application is also manifestly ill founded and must likewise be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

    For these reasons, the Court unanimously

    Declares the application inadmissible.

    Santiago Quesada Josep Casadevall
    Registrar President

     


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