European Court of Human Rights

 

 

SECOND SECTION

CASE OF STRAISTĂ v. THE REPUBLIC OF MOLDOVA

(Application no. 14191/14)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

15 March 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Straistă v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Jovan Ilievski,
          Diana Sârcu, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 14191/14) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 February 2014 by a Moldovan national, Ms Liliana Straistă, born in 1970 and living in Chișinău (“the applicant”) who was represented by Mr C. Tănase, a lawyer practising in Chișinău;

the decision to give notice of the complaints under Articles 8 and 13 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 22 February 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.  The case concerns the authorities’ alleged failure to fulfil their positive obligation to protect the applicant against an on-going violation of her right to private life and to carry out an effective investigation into her complaints.

2.  In 2012 a fake Facebook profile was created in the applicant’s name, using her real photos and adding other photos that depicted a summarily dressed woman in provocative poses, face hidden. The text underneath said that she offered sexual services. The applicant’s real phone number was noted. Overall, during 2012-2013, over 50 such accounts were created in Facebook, while similar accounts were created in other social media. The applicant’s numerous complaints to the authorities resulted in administrative proceedings which were discontinued in March 2014 because of the expiry of the prescription period; the applicant was informed of this only in January 2015. The IP address from which the accounts were created (obtained by the applicant from Facebook) was allegedly not verified by the authorities. Similar Facebook profiles continued being created until 2015; each time the applicant complained to the authorities.

3.  The applicant complained of a violation of Article 8 of the Convention because the authorities had failed to prevent further violations of her rights by not carrying out an effective investigation and identifying the culprit(s).

4.  She also complained under Article 13 of the Convention that she did not have an effective remedy in respect of her complaint under Article 8.

THE COURT’S ASSESSMENT

I.         ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

5.  The applicant complained that the authorities had failed to prevent her continued disparagement by not carrying out an effective investigation and identifying the culprit(s).

6.  The Government argued that the authorities had taken all reasonable measures and fully investigated all of her complaints.

7.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

8.  The general principles concerning the authorities’ positive obligation to secure respect for private life in the sphere of the relations of individuals between themselves, have been summarised in K.U. v. Finland (no. 2872/02, §§ 41-50, ECHR 2008). Further general principles concerning the obligation to carry out an efficient investigation have been summarised in Khadija Ismayilova v. Azerbaijan (nos. 65286/13 and 57270/14, § 115 et seq., 10 January 2019).

9.  In March 2014 the investigation was discontinued because of the expiry of the prescription period. However, the applicant complained many times about new disparaging accounts created in her name, including after March 2014. Therefore, the prescription could not be a valid reason for discontinuing the investigation, because the regularly committed new attacks on the applicant’s privacy were identical to the previous ones and thus were part of a continuous violation of her rights. Moreover, the Government did not submit any evidence of any specific measure taken, notably of requesting from the domestic internet access operators the identity of the person using the IP address submitted by the applicant. She was also not kept informed and had to file complaints in order to find out about decisions taken in the case.

10.  In view of the above and the significant flaws in the manner in which the domestic authorities investigated the case, the Court finds that the authorities failed to comply with their positive obligation to ensure the adequate protection of the applicant’s private life by carrying out an effective criminal investigation into the very serious interferences with her private life.

11.  There has accordingly been a violation of Article 8 of the Convention.

II.      COMPLAINT under article 13 of the Convention

12.  The applicant also complained under Article 13 of the Convention that she did not have an effective remedy in respect of her complaint under Article 8. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that the applicant’s remaining complaint is admissible but that there is no need to give a separate ruling on it (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,200 in respect of costs and expenses incurred before the Court.

14.  The Government argued that the sum claimed was unsubstantiated.

15.  The Court awards the applicant EUR 5,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

16.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,200 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds that there is no need to examine the complaint under Article 13 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

             Hasan Bakırcı                                                   Branko Lubarda
          Deputy Registrar                                                      President