SECOND SECTION
CASE OF LUCA v. THE REPUBLIC OF MOLDOVA
(Application no. 55351/17)
 
JUDGMENT
 
Art 3 (substantive and procedural) • Positive obligations • Domestic authorities’ failure to protect applicant from domestic violence • Failure to conduct autonomous, proactive and comprehensive risk assessment of recurrent violence against applicant • Failure to take operational and preventative measures in a coordinated manner to mitigate risk, protect the applicant and condemn the perpetrator’s conduct • Authorities’ passivity in the face of serious ill-treatment allowed it to continue • Ineffective investigation • Failure to investigate credible allegations of physical and psychological violence and to ensure perpetrator’s prosecution and punishment without undue delay
Art 8 • Positive obligations • Family life • Domestic authorities’ failure to take prompt measures to support applicant in maintaining contact with her children leaving her to defend rights on her own • Failure to take into account incidents of domestic violence in determination of child contact rights
Art 14 (+ Art 3) • Discrimination • Domestic authorities’ actions condoned domestic violence reflecting discriminatory attitude towards applicant as a woman • Protection measures appeared to have been rejected by use of discriminatory statements and reasons, given perpetrator’s criminal conviction on same facts five years later

 
STRASBOURG
17 October 2023
 
FINAL
 
17/01/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Luca v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Diana Sârcu,
 Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 55351/17) 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”) by a Moldovan national, Ms Lilia Luca (“the applicant”), on 24 July 2017;
the decision to give notice of the application to the Moldovan Government (“the Government”);
the parties’ observations;
Having deliberated in private on 26 September 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the alleged failure of the Moldovan authorities to protect the applicant from domestic violence and to support her in maintaining contact with her children. The applicant relied on Articles 3, 8 and 14 of the Convention. THE FACTS
2. The applicant was born in 1978 and lives in Chișinău. She was represented by Mr A. Postică and Ms L. Potîng, lawyers practising in Chișinău. 3. The Government were represented by their Agent at the time, Mr O. Rotari. 4. The facts of the case may be summarised as follows. 5. The applicant and A.I. lived as an unmarried couple in Italy, where in 2006 their two children were born and they got married. In 2012 A.I. returned with the children to the Republic of Moldova. The applicant stayed in Italy to work to support the family, sending money back to the Republic of Moldova before joining them there in 2015. Facts and proceedings concerning domestic violence
6. According to the applicant, A.I. started abusing her psychologically and physically in October 2015. She subsequently reported two incidents of physical violence which occurred on 13 July and 4 November 2016, as well as verbal abuse, harassment and emotional abuse by A.I., who encouraged the children to have a negative opinion of her and disconnected utilities in their home, making it impossible for her to stay there. 7. The domestic authorities examined these allegations in parallel proceedings, as described below. Proceedings under Law no. 45 on domestic violence
8. On 1 August 2016 the applicant sought a protection order for herself and her two children. In her request she noted that there had been a history of physical and psychological violence, including in the presence of the children, since October 2015 and a recent occurrence of physical violence on 13 July 2016. 9. On 2 August 2016 the Ialoveni District Court granted her request, issuing a protection order for ninety days, for the duration of which A.I. was to leave their common residence, to refrain from any contact with the applicant or the children and to stay at least 50 m away from them. On 27 October 2016 the Chișinău Court of Appeal upheld the protection order. 10. The applicant complained to the police and to the child protection services on 24 August and on 2 and 5 September 2016 about A.I.’s failure to comply with the protection order. In particular, she argued that A.I. had not observed the requirement to remain at a distance of 50 m since he had moved in with his sister, who lived in another part of the same house as the applicant although it had a separate entrance. She noted that the children had been exposed to psychological pressure from A.I. and had moved in with him on 22 August 2016, while A.I. had continued expressing negative views about her in front of the children. She also complained that A.I. had taken personal things belonging to her from her home in her absence and thrown them into the garage, blocking her access to them. She argued that neither the police nor the social assistance and child protection services had monitored whether the protection order had been complied with. On 10 October 2016 the applicant sought the intervention of the police, noting, among other things, that A.I. was manipulating the children into having a negative opinion of her, that he took things from her home while she was absent and that on 12 September 2016 he had cut off the water supply to the part of the house where she lived and that she was still unable to have it reconnected. On 15 November 2016 the applicant explicitly complained to the police about A.I. hindering her access to the children. 11. On 24 October 2016 the police replied that her description of facts had not been confirmed and that on 7 October 2016 the prosecutor had refused to initiate any investigation (see further details in paragraph 22 below). In respect of the emotional abuse inflicted on the applicant by A.I. severing contact with the children, the police referred, among other things, to the child protection authority’s refusal of 15 September 2016 to provide a contact schedule (see paragraph 30 below). 12. On 31 October 2016 the applicant sought an extension of the protection order, referring to A.I.’s failure to comply with the order of 2 August 2016 and to his ongoing emotional abuse and harassment of her by manipulating the children against her and disrupting the water supply in her home. 13. On 2 November 2016 the Ialoveni District Court rejected the applicant’s request. The court concluded that the applicant had failed to produce evidence of non-compliance with the protection order. The court noted:
“The family misunderstandings between the spouses cannot serve as a pretext to extend the protection order in respect of [the applicant] and the children, who currently live with their father, [A.I.]. The refusals to initiate criminal proceedings on 7 October 2016 ... confirm that the conflicts between the spouses are a family dispute without elements of violence.”
Her appeal against that decision was dismissed on 24 January 2017 by the Chișinău Court of Appeal, noting that she had failed to produce evidence that A.I.’s behaviour had not changed and that she was still at risk of domestic violence at his hands. 14. On 4 November 2016 the applicant was physically assaulted by A.I. in her home. A medical report drawn up on the same day mentioned two bruises on her forehead measuring 2.8 cm by 2.5 cm and 2.9 cm by 2.5 cm, as well as bruises on her arms (the biggest of which measured 1.9 cm by 1.7 cm) and buttocks (measuring 2.0 cm by 1.5 cm). The injuries were classified as minor. The applicant was hospitalised for eight days with a diagnosis of concussion. 15. The applicant repeatedly sought a protection order against A.I., referring to the physical assault of 4 November 2016 in addition to the reasons advanced previously. In addition to the restrictions ordered earlier, she also sought orders for A.I. to cover her medical costs and to attend a mandatory treatment and medication programme and for the children to be unconditionally returned to her pending the conclusion of the proceedings. 16. On 10 November 2016 the Ialoveni District Court rejected her request for lack of evidence and held as follows:
“...[T]he court considers it necessary to reject the request for the extension of the [protection order], because the facts described and the documents attached are insufficient to confirm [A.I.]’s failure to comply with the restrictions imposed by the protection order of 2 August 2016, aggressive behaviour by him after its expiry. Moreover, the conclusions of the [child protection] authority and the children’s recent statements as to their wish to live with their father and not with their mother indicate precisely that [the applicant] seeks to use the circumstances established by the court protection orders, of which she has no need in fact, in the financial disputes and in the proceedings concerning divorce and the custody of the children, all pending before the Ialoveni District Court. Also, the initiation of criminal proceedings against [A.I.] for residing in his mother’s house together with the minor children, located at an unspecified distance from his previous home, in the absence of a bailiff’s conclusion that this had violated the previous protection order, is an overdramatic element (element de concertare) in the [applicant’s] behaviour, which also undermines her credibility as to the circumstances in which she suffered minor injuries on 4 November 2016. Moreover, the measures requested by [the applicant] are extremely aggressive and strict, going beyond the consequences of a conviction in similar cases, and are applicable only in respect of persons who have ill-treated a relative for a long time, where the violence has been ascertained by the authorities, but not in the course of disputes relating to divorce or children’s residence. It should also be noted that the applicant did not submit any evidence to suggest that [A.I.] had been violent towards her and the children before the decision to divorce.”
The applicant appealed against that decision but was unsuccessful. 17. On 9 February 2017 the applicant made a new request for a protection order, including a request for A.I. to be ordered to reconnect the water supply, the electricity and the gas and to refrain from insulting her by words or gestures. She referred to criminal proceedings initiated against A.I for breach of the protection order and psychological violence in respect of the children (see paragraphs 23 and 44 below) and to the absence of other protection measures. She noted the previous physical abuse and ongoing harassment in the form of turning the children against her and disrupting her water and electricity supply. 18. On 13 February 2017 the Hâncești District Court rejected her request and cited the absence of domestic violence and of any imminent danger of physical violence. The decision read as follows:
“The applicant and [A.I.] are in divorce proceedings and live separately. [The applicant] has acknowledged that [A.I.] avoids her and does not wish to talk to her. The last time he had been physically violent was on 4 November 2016. The court notes that a final court decision has already been taken on allegations of violent actions committed by [A.I.] on 4 November 2016 and the court rejected [the applicant’s] request.
...Although the applicant seeks protection measures in respect of the children, she has not submitted any evidence to confirm that the alleged aggressor is psychologically, physically or otherwise violent towards them ... Moreover, advisory opinion no. 1299 of 10 November 2016 of the Ialoveni Social Assistance and Family Protection Service has recommended that the court confirm the children’s residence with their father, [A.I.]. In addition, the protection measures requested by the applicant fall outside the legal framework, as neither the Code of Civil Procedure nor Law no. 45 on preventing and combating domestic violence provide for measures such as ordering the aggressor to secure adequate living conditions by connecting a water supply or electricity and gas, to refrain from psychological violence against family members, or to refrain from insulting the victim with words and gestures. From the content of the explanations given, the court concludes that the applicant is manifesting her dissatisfaction with the situation in which she cannot have contact with the children. However, in this connection a contact schedule had been set up, [and in the event of non-compliance] the applicant may use other legal means to protect her rights and interests rather than seeking protection orders.”
19. The applicant appealed against that decision, asserting that A.I. had been violent since the expiry of the previous protection order, namely during the incident of 4 November 2016, and that his engineering of the children’s negative attitude towards her was a form of psychological violence against her. She submitted that the contact schedule set on 26 January 2017 had not been respected as A.I. had continued to prevent the children from meeting her under the pretext that they refused to see her. 20. On 13 April 2017 the Chișinău Court of Appeal dismissed the applicant’s appeal, concluding that the applicant had not been subjected to physical or psychological violence. The court found that the initiation of criminal proceedings in itself was not sufficient evidence of violence because, in the absence of a final judgment, A.I. was to be presumed innocent. The court also dismissed the applicant’s arguments of psychological violence, noting that the law provided for a different procedure for the enforcement of contact rights and her complaints to the police about the interference with her home were irrelevant in the absence of a decision taken by the appropriate authorities. While finding that the applicant was no longer living with A.I. and that they were in divorce proceedings, the court emphasised that the parties should not use proceedings for protection from domestic violence as a “means of revenge”. Criminal proceedings
21. On 13 July 2016 the applicant lodged a complaint with the police about being physically abused by A.I. The police refused to institute criminal proceedings but ordered A.I. to pay an administrative fine of 500 Moldovan lei (MDL – equivalent to approximately 25 euros (EUR)) on charges of minor bodily injuries (Article 78 § 3 of the Code of Administrative Offences). On 28 July 2017 the Hâncești District Court upheld an appeal by A.I. and quashed the decision, concluding that the imposition of the fine had been procedurally improper and that the police had failed to show that the alleged offence had been committed. The applicant appealed but her appeal was dismissed. 22. In response to the applicant’s complaints (see paragraph 10 above), on 7 October 2016 the prosecutor refused to institute criminal proceedings. The prosecutor noted, among other things, A.I.’s opinion that the family conflicts were frequent and essentially the consequence of the applicant’s alleged infidelity, and that the children had stayed with their mother for only one day after he had left and had then refused to stay with her any longer, although A.I. had never stopped them from contacting their mother. The prosecutor concluded that the parties were in the process of getting divorced and that the conflict between them was of a civil nature, to be resolved either amicably or by court proceedings. The applicant appealed against that decision, emphasising the aspects of psychological violence and emotional abuse by preventing her from having contact with the children. The hierarchically superior prosecutor dismissed her appeal. On 7 December 2016 the Ialoveni investigating judge rejected a further appeal by the applicant because her application was not signed. 23. On 2 November 2016 the Ialoveni police initiated criminal proceedings against A.I. on charges of breach of the protection order of 2 August 2016 (Article 320/1 of the Criminal Code), in particular for his failure to keep at a distance of at least 50 m from the applicant and to refrain from contacting her. 24. On 24 November 2016 the Ialoveni police initiated criminal proceedings against A.I. on charges of domestic violence (Article 201/1 (1) (a) of the Criminal Code), in particular for having inflicted minor injuries to the applicant. 25. The two sets of criminal proceedings (for domestic violence offences and breach of a protection order) were joined. 26. The prosecutor sought protection measures within those proceedings, but on 24 February 2017 the Hâncești District Court dismissed the application as unsubstantiated. The court concluded:
“... the acts of psychological violence of which [A.I.] has been accused have not been substantiated before the court, and from the material and explanations provided by the parties, the court has not found any evidence of domestic violence or an imminent danger of physical violence against [the applicant]. ... In the light of [Article 8 of the Convention] and the factual situation in the criminal proceedings at hand, the court considers it unacceptable and [un]necessary that State authorities should interfere in the private and family life of the spouses ... because no pertinent and conclusive evidence has been produced to show that [A.I.] is the aggressor within the family through the behaviour described by [the applicant] or why the court should impose any [protection measures].”
27. On 14 November 2019 the Hâncești District Court convicted A.I. on both counts and sentenced him to two years and three months’ imprisonment, suspended for two years. The court treated the physical abuse of 4 November 2016 as domestic violence and found that A.I. had breached the protection order of 2 August 2016 by not complying with the order to keep a 50 m distance from the applicant and by contacting her. The court ordered A.I. to pay the applicant MDL 3,000 (equivalent to EUR 154) in respect of pecuniary damage, MDL 15,000 (equivalent to EUR 770) in respect of non-pecuniary damage and MDL 7,000 (equivalent to EUR 360) in costs and expenses. The applicant did not appeal against that judgment. A.I.’s subsequent appeals were rejected with final effect on 15 September 2021 by the Supreme Court of Justice. Facts and proceedings relating to contact rights
28. On 22 August 2016, while the protection order of 2 August 2016 was still in force, the applicant’s children moved in with A.I. and stopped answering the applicant’s telephone calls. 29. On 5 September 2016 the applicant asked the Social Assistance and Child Protection Service (“the child protection authority”) to set up a contact schedule which would allow her to spend as much time with her children as A.I. did. In her request she referred to the protection order of 2 August 2016 and to the domestic violence context, in which the children had witnessed A.I.’s verbal abuse of her and his negative attitude towards her. 30. On 15 September 2016 the child protection authority issued an advisory opinion in which it declined to provide a contact schedule, as follows:
“On 13 September 2016 ... [A.I.] expressed his full support for the [applicant’s] request, saying that he considered that [the children], if they wished, were entitled to contact with both parents irrespective of who they lived with, but that the decision was up to them. ... On 13 September 2016, in the presence of the [child protection specialist], [one of the children] stated that he refused to live with their mother because while they were there she had locked them inside the house and that they wished to live with their father. [The second child] stated that he wished to live with his father because it was their father who took care of them, that when they were sick the father did not sleep and that he taught them to write, whereas their mother came home late, never asked about their homework, was not interested in the children’s lives, did not want to give them house keys, took their keys and telephones by force, and had locked them in to prevent them from going to their father. On the basis of the above, and in the light of Article 54 and Article 64 §§ 1 and 2 of the Family Code and sections 8(2) and 17 of Law no. 388 on children’s rights and of the statements made by the children, [the child protection authority], acting in the children’s best interests, declines to set out a contact schedule... The parents must ... continue honouring their duty to support and raise the children.”
31. The applicant appealed against that decision, arguing that the children’s views were precisely the result of A.I.’s negative influence on them and that she was being punished for not having been with her children from 2013 to 2015 when she had been working in Italy for the benefit of the entire family. She noted that the child protection authority had not explained how the children’s contact with their mother was against their best interests or how she could exercise her parental rights without contact with the children. 32. On 11 November 2016 the Ialoveni District Court granted the applicant’s request and ordered the Ialoveni child protection authority to set up a contact schedule. 33. On 21 November 2016 the applicant sought information from the children’s school as to whether the children had been provided with any support from the school psychologist with a view to re-establishing contact with their mother or to deal with the effects of having witnessed domestic violence, and she asked to be provided with a copy of their psychological assessment. 34. In what appears to be a reply, on 24 November 2016 the school principal confirmed that the applicant was regularly attending various events at school, including parents’ meetings, and that on 16 November 2016 A.I. had asked the school administration to make sure that the children’s mother did not “upset the children emotionally by her presence during classes or extracurricular activities”. 35. At the applicant’s request and with reference to the court judgment of 11 November 2016, on 26 January 2017 the child protection authority provided a contact schedule according to which the children were to spend every second week with the applicant. 36. However, on 9 February 2017 the applicant complained to the police that on 30 January 2017 A.I. had refused to comply with the contact schedule. In reply the police said that A.I was not at fault, since it was the children who had voluntarily expressed a wish to spend time only with their father. The applicant’s subsequent requests for assistance yielded similar replies, namely that it was up to the children to decide when and with which parent they were to live. 37. On 8 May 2017, the children’s birthday, the applicant complained to the police that A.I. had left with the children and was not answering the phone, depriving her of any opportunity to wish the children happy birthday and give them their presents. In reply, the police confirmed the applicant’s description of facts but redirected her to the child protection authority. 38. On 23 May 2017 the applicant sought the presence of a child protection specialist to facilitate contact with her children during a visit to their school. The report of the child protection authority after the visit read as follows:
“The visit was organised together with the [school administration], and a separate room was provided for the visit. The children had a negative reaction to seeing their mother and did not wish to talk to her. [I.E.] was silent, [I.A.] expressed his dissatisfaction in the form of revolt, stating that he would not stay in the room as long as his mother was there. At that point, [the applicant] left the room and the children stayed to talk to the senior child protection specialist. When he was asked why they did not wish to communicate with their mother, [I.A.] said that their mother was bad, that she did not need them, and that they had been raised by their father as their mother came home late. The children said that they would not go with their mother and would not even talk to her, saying that it was their right to refuse to do so and that they could not be forced by anyone. During the visit [the applicant] offered the children gifts but they refused to accept them.”
39. According to the Government, on 18 September 2017 a working group was set up to identify solutions so that contact could be re-established between the applicant and her children. The group included representatives of the child protection authority, a psychologist of the social protection service and representatives from the National Centre for the Prevention of Child Abuse (a non-governmental organisation) and the psycho-pedagogical assistance service. The working group recommended the involvement of a professional psychologist who should have separate sessions with the children and then, on a gradual basis, with the parents. At the same time, it recommended that the parents pursue family therapy sessions. The Court has not been provided with any documentary information about the work of this specialist group. Divorce proceedings
40. On 19 July 2016 A.I. initiated proceedings for divorce, seeking custody of the children and maintenance from the applicant. 41. On 19 June 2018 the Hâncești District Court granted the divorce and decided that the children should live with their father, rejecting the applicant’s application for custody. The judgment became final on 7 March 2022 after the Chișinău Court Appeal had rejected the applicant’s appeal for failure to comply with formal requirements. Other facts
42. On 14 December 2016 the National Centre for the Prevention of Child Abuse confirmed to the applicant that its specialists had had a meeting with her and the children on 16 August 2016, during which a primary assessment indicated that the children had a positive attachment to their mother. Five subsequent sessions took place with the applicant alone, because the children were unable to attend. The specialists had assessed the applicant as presenting specific signs of domestic violence, and as being profoundly affected by the lack of contact with her children. 43. On 16 December 2016 the applicant lodged a criminal complaint against A.I., claiming that he was abusing their children psychologically. She noted that she and the children had seen a psychologist on 16 August 2016 because she had already been worried about the impact A.I. was having on them. While the psychologist had confirmed at that point that the children had a positive relationship with the applicant, no further sessions took place because A.I. prevented the children from attending them. In time, the children started being aggressive towards the applicant and her family. 44. On 19 January 2017 a criminal investigation was initiated in respect of A.I. on charges of domestic violence in the form of isolating and intimidating the children (Article 201/1 (2) (a) of the Criminal Code). In June 2017, in the course of those proceedings, the investigator concluded that the child protection authority should act as the legal representative of the children and not the applicant, towards whom the children had exhibited a negative attitude. The applicant appealed unsuccessfully against that decision. 45. According to the Government, the proceedings were discontinued on 30 March 2018 after two judicial expert reports had concluded that the children did not manifest any symptoms of mental trauma or its consequences. RELEVANT LEGAL FRAMEWORK
RELEVANT DOMESTIC LAW
46. The relevant parts of Law no. 45 of 1 March 2007 on preventing and combating domestic violence read as follows at the time of the events:
Section 2 – Definitions
“...
domestic violence – acts of physical, sexual, psychological, spiritual or economic violence, except acts in self-defence or in defence of another person, as well as threats of committing such acts [of violence], perpetrated by a family member in respect of another family member, which has resulted in pecuniary or non-pecuniary damage;
psychological violence – imposing one’s will or personal control; provoking psychological tension or suffering through ridiculing, swearing, insulting, name‑calling, blackmail, deliberate property damage, verbal threats ...”
Section 15. Protection measures
“(1)  Within twenty-four hours after receiving a request the court shall make a protection order to assist the victim and her children, imposing the following measures against the aggressor:
(a)  ordering him to leave the common residence temporarily or to stay away from the victim’s residence, without deciding ownership rights;
(b)  ordering him to stay away from the victim, preventing him from seeing the victim or the children or other dependants;
(c)  prohibiting any contact, including via telephone, correspondence or in any other way, with the victim, the children or other dependants;
(d)  prohibiting him from approaching certain locations: the victim’s workplace, the children’s school, other designated locations visited frequently by the victim;
(e)  ordering him to contribute to the maintenance of the children until the proceedings are over;
(g)  limiting the unilateral use of joint assets;
(f)  ordering him to pay compensation for costs and damage caused by violent actions, including medical costs and the costs of replacing or repairing items that were destroyed or damaged; [provision removed by an amendment which came into force on 16 September 2016]
(h)  ordering attendance on a treatment or counselling programme, if the court considers this necessary in order to reduce or stop violence;
(i)  setting a temporary contact schedule with any minor children;
(j)  prohibiting the keeping or carrying of weapons. (2)  The protection order shall be communicated immediately to the police with territorial responsibility in the aggressor’s place of residence, who shall inform the aggressor without delay of the measures adopted. If the protection order is issued in respect of a child, the local child protection authority shall also be informed. (3)  The protection measures in subsection (1) shall be applicable for up to three months, may be revoked under the terms of this Law and may be extended on request or if the previous protection order has not been complied with. (4)  The application of protection measures shall not preclude the initiation of proceedings for divorce, division of marital property, removal of parental authority, taking children into care without removing parental authority and other actions provided under law. (4/1)  While the protection order is in force, the exercise of parental rights shall be reserved to the parent who is the victim. The parent who is the aggressor may request contact rights, which will be granted on the basis of a schedule issued by the local child protection authority. [provision introduced by an amendment in force as of 16 September 2016]”
47. At the material time, the relevant parts of the Code of Civil Procedure of the Republic of Moldova, brought into force by Law no. 255 of 30 May 2003, read as follows:
Article 318/3. Examination of the request
“(1)  After receiving the request, the court shall contact the police immediately and ask for the aggressor to be informed about the commencement of proceedings. (2)  An independent statement by the victim is sufficient for issuing a protection order where there is an imminent risk of physical violence. The court may request, if necessary, an assessment of the family concerned and of the aggressor by the social services or the police. The court may request other documents necessary for the examination of the request. ...”
Article 318/5. Extension and revocation of the protection order
“(1)  The duration of protection measures may be extended by the court following a further request if there are further acts of domestic violence or a failure to comply with the previous protection order or if, on the expiry of the protection measures, there is still a risk of violence or of other illegal action by the aggressor against the victim.”
48. At the time of the events the relevant parts of the Criminal Code of the Republic of Moldova, brought into force by Law no. 895 of 18 April 2002, read as follows:
Article 201/1. Domestic violence
“(1)  A deliberate act or omission committed by a family member in respect of another family member, manifesting as:
(a)  ill-treatment, other violent acts, resulting in minor bodily harm;
(b)  isolation or intimidation with the purpose of coercion or personal control over the victim;
... shall be punishable by 150 to 180 hours of community service or by imprisonment up to three years. (2)  The acts or omission described under paragraph (1):
(a)  committed in respect of two or more family members;
... shall be punishable by 180 to 240 hours of community service or by imprisonment for one to six years.”
Article 320/1. Failure to comply with measures in
a domestic violence protection order
“The deliberate breach, or absconding from the enforcement, of measures imposed by a court in a domestic violence protection order shall be punishable by 160 to 200 hours of community service or by imprisonment for up to three years.”
49. The relevant parts of the Family Code of the Republic of Moldova, brought into force by Law no. 1316 of 26 October 2000, read as follows:
Article 52. The rights of the child to contact with his or her parents and other relatives
“(1)  The child shall be entitled to contact with both parents ... The dissolution of the parents’ marriage ... or their separation shall not affect the child’s rights. If the parents live separately, the child shall be entitled to contact with each parent.”
Article 54. The right of the child to express an opinion
“The child shall be entitled to express an opinion on decisions about family issues which concern his or her interests and are to be heard in the course of administrative or judicial hearings. The opinion of a child who is ten years or older shall be taken into consideration if this does not run counter to his or her best interests.”
Article 64. Exercise of parental rights when parents live separately
“(1)  The parent who lives with the child shall not be entitled to prevent the child’s contact with the other parent who lives separately, except when the other parent’s behaviour is detrimental to the child’s best interests or poses a danger to the child’s physical or psychological integrity.”
INTERNATIONAL LAWUnited Nations

50. The General Recommendation No. 19: Violence against women, adopted in 1992 by the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW), describes family violence as one of the most insidious forms of violence against women. It includes violence of all kinds, including battering, rape, other forms of sexual assault and mental and other forms of violence which are perpetuated by traditional attitudes. The Republic of Moldova acceded to the UN Convention on the Elimination of All Forms of Discrimination against Women on 1 July 1994. 51. In its General Recommendation No. 35, adopted in 2017 (UN Doc. CEDAW/C/GC/35), which complements and updates General Recommendation No. 19, CEDAW stated, inter alia:
“26.  ... all judicial bodies are required to refrain from engaging in any act or practice of discrimination or gender-based violence against women and to strictly apply all criminal law provisions punishing such violence, ensuring that all legal procedures in cases involving allegations of gender-based violence against women are impartial, fair and unaffected by gender stereotypes or the discriminatory interpretation of legal provisions, including international law. The application of preconceived and stereotypical notions of what constitutes gender-based violence against women, what women’s responses to such violence should be and the standard of proof required to substantiate its occurrence can affect women’s rights to equality before the law, a fair trial and effective remedy.”
52. In its General Recommendation No. 33 on women’s access to justice, adopted in 2015 (UN Doc. CEDAW/C/GC/33), CEDAW noted how gender prejudices in the judicial system impeded access to justice and contribute to a culture of impunity. Against this context, CEDAW recommended that State parties:
“18. (e)  Implement mechanisms to ensure that evidentiary rules, investigations and other legal and quasi-judicial procedures are impartial and not influenced by gender stereotypes or prejudice;
...”
Council of Europe
53. The Council of Europe Convention on preventing and combating violence against women and domestic violence (CETS 210) was adopted in Istanbul on 11 May 2011 and came into force in respect of the Republic of Moldova on 1 May 2022. The Convention requires that incidents of violence covered by it be taken into account in the determination of custody and visitation rights of children (Article 31). It also lists psychological violence as a form of gender-based violence (Article 33) and requires Parties to take the necessary measures to ensure that investigations in relation to all forms of violence covered by its scope are carried out without undue delay and having regard to the gendered understanding of violence (Article 49). Its Explanatory Report clarifies:
“175.  [Article 31] aims at ensuring that judicial authorities do not issue contact orders without taking into account incidents of violence covered by the scope of this Convention. It concerns judicial orders governing the contact between children and their parents and other persons having family ties with children. In addition to other factors, incidents of violence against the non-abusive carer as much as against the child itself must be taken into account when decisions on custody and the extent of visitation rights or contact are taken. 176. Paragraph 2 addresses the complex issue of guaranteeing the rights and safety of victims and witnesses while taking into account the parental rights of the perpetrator. In particular in cases of domestic violence, issues regarding common children are often the only ties that remain between victim and perpetrator. For many victims and their children, complying with contact orders can present a serious safety risk because it often means meeting the perpetrator face-to-face. Hence, this paragraph lays out the obligation to ensure that victims and their children remain safe from any further harm. ...
179.  [Psychological violence is] any intentional conduct that seriously impairs another person’s psychological integrity through coercion or threats ... which seriously impairs and damages a person’s psychological integrity which can be done by various means and methods. The Convention does not define what is meant by serious impairment. Use must be made of coercion or threats for behaviour to come under this provision... This provision refers to a course of conduct rather than a single event. It is intended to capture the criminal nature of an abusive pattern of behaviour occurring over time – within or outside the family. Psychological violence often precedes or accompanies physical and sexual violence in intimate relationships (domestic violence).”
54. In its Third General Report on Activities (June 2022), the Council of Europe Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) described at length and gave illustrations of the strengths and weaknesses of States parties in the implementation of Articles 26, 31 and 45 with regard to victims of domestic violence and decisions made on child custody and contact. In respect of measures that were insufficient to ensure the safety of victims of domestic violence and their children, GREVIO referred to inadequate risk assessment, where judges did not screen cases relating to the determination of custody and contact for domestic violence; a lack of co-ordination between civil and criminal processes whereby courts could make an order for a perpetrator of violence to have contact with his children in spite of a restraining order made against him by another court in other proceedings; a failure to treat child witnesses of domestic violence as victims, resulting in the harmful effect on children of witnessing such violence not being systematically considered in decisions on child contact; and a failure to take incidents of domestic violence into account in court decisions on custody and contact, with evidence suggesting that one parent’s abuse of the other was only rarely, if at all, taken into account when taking such decisions. GREVIO also noted that the wording of legislation sometimes failed to acknowledge the power imbalance between perpetrators and victims in cases of domestic violence against women and treated them equally by specifying that the suspension of parental rights could be ordered with respect to both the aggressor and the parent who tolerated the violence. Such a provision could lead to protection mechanisms turning against women victims of intimate partner violence and exposing them to secondary victimisation by restricting the exercise of their parental rights. To address these issues, GREVIO identified the following among the cross-cutting actions to be taken in order to achieve continuing progress on improving the situation for victims of domestic violence in relation to custody and contact rights:
“1.  ensure that adequate screening of family court applications, including a mandatory question regarding violence, is undertaken, and disclose risk assessments originating from other authorities;
2.  strengthen inter-institutional co-operation and information exchange between civil courts and criminal courts, as well as between these courts and services that assist and support victims of violence and their children or other bodies (such as women’s specialist services, social protection and health services, or educational institutions), in order to prevent, inter alia, ordering contact between a perpetrator and a child/children in spite of a restraining order issued by another court;
...
6.  step up efforts to ensure wider levels of awareness among the professionals concerned, such as educators, teachers, social workers, legal and health professionals, and psychologists, of the harmful effects of witnessing domestic violence on children, and to provide access for child witnesses to appropriate, age-specific support services based on a gendered understanding of violence against women and pay due regard to the best interests of the child;
7.  ensure the recognition of witnessing violence against a close person as jeopardising the best interest of the child and take their wishes and feelings into account where possible with regard to custody and visitation, including in judicial proceedings;
8.  explicitly recognise the need to take into account incidents of violence covered by the scope of the Istanbul Convention in the determination of custody and visitation rights of children, including by consulting with all relevant professionals and/or conducting independent investigations, as well as amending the law to remedy existing gaps; ...”
55. In its Mid-term Horizontal Review of baseline evaluation reports (February 2022), GREVIO noted:
“Victim support provided in other legal proceedings
487. In its baseline evaluation report on Portugal, GREVIO noted that support tends to concentrate on accompanying the victim throughout the criminal proceedings, leaving them on their own when it comes to other types of legal proceedings, such as proceedings related to child custody. It has expressed the concern that this leaves them vulnerable and often unable to defend their rights and interests, such as for the purposes of negotiating an agreement on parental responsibilities with the violent father. It therefore strongly encouraged the authorities to provide such support not only in criminal proceedings but also in related civil proceedings, such as those instituted to settle a compensation claim, a divorce or custody in domestic violence cases.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
56. The applicant complained that the domestic authorities had failed to afford her effective protection from domestic violence. She relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
57. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Submissions by the parties
58. The applicant submitted that the domestic authorities had failed to afford her effective protection from domestic violence at the hands of A.I. In particular, she noted that despite A.I.’s proven past acts of physical violence and imminent risk of reoffending, the authorities had refused to make protection orders other than on one occasion, on 2 August 2016, when the order had, however, not been complied with. The reasons put forward by the courts for dismissing her subsequent applications for protection were discriminatory and inadequate to the context of domestic violence. The criminal proceedings had not been initiated promptly and had resulted at first instance in a suspended sentence three years later, which had become final five years after the events, and which had limited, if any, deterrent effect. The authorities had failed to give any consideration to the applicant’s complaints of psychological violence and had failed to prevent the recurrence of physical abuse on 4 November 2016, after her application for the extension of the protection order had been dismissed. 59. The Government submitted that the domestic authorities had reacted promptly to the applicant’s complaints of domestic violence by issuing a protection order on 2 August 2016 and by subsequently criminally convicting A.I. for failing to comply with that order. The Government argued that the dismissal of subsequent applications for protection orders had been justified by the absence of further occurrences of domestic violence. The violent assault of 4 November 2016 could not have been foreseen by the authorities, which had responded effectively by prosecuting and subsequently convicting A.I. In the absence of other violent incidents and of any appeal by the applicant arguing that the sentence was unduly lenient, the Government concluded that the domestic authorities had discharged their positive obligations to protect the applicant from domestic violence.

Article of the Convention at issue: Article 3
Outcome: violation