FOURTH SECTION

DECISION
Application no. 30777/14
Mihaela Mara PĂTRĂUCEANU-IFTIME
against Romania

The European Court of Human Rights (Fourth Section), sitting on

8 January 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 9 April 2014,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:

THE FACTS
1. The applicant, Ms Mihaela Mara Pătrăuceanu-Iftime, is a Romanian
national who was born in 1975 and lives in Iaşi. She was represented before
the Court by Ms G. Lupșan, a lawyer practising in Iaşi.
2. The Romanian Government (“the Government”) were represented by
their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

as follows.
4. In 1997 the applicant married P.I.N. Their children, F.P. and S.S.P.,
were born in 2001 and 2006 respectively.
5. According to the applicant, P.I.N. was always aggressive and violent
towards her, both physically and verbally. The children were often present
during the abuse, and they were often threatened with violence, slapped,
2 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION

punched or hit with a belt by their father. She filed for divorce, but
withdrew her petition allegedly because of threats received from her
husband.
6. On 12 May 2010 the Iași Forensic Institute issued a medical
certificate which attested that the applicant’s son presented with
ecchymosis, which would need one to two days to heal. According to the
applicant, the violence had been perpetrated by her husband on
10 May 2010. She also claimed that on 14 March 2011 her son had been
beaten with a belt by his father.
7. On 14 June 2011 the applicant was allegedly physically and verbally
assaulted by her husband. She moved out of the marital home. The children
remained with their father until September 2011, when the mother took
them to the paternal grandfather’s home.
8. On 15 June 2011 the applicant lodged a criminal complaint against
her husband in respect of the incident of 14 June 2011. On 20 June 2011
P.I.N. confessed that he had injured his wife. On 21 June 2011 the applicant
informed the police that she had reconciled with P.I.N. and consequently
withdrew her complaint. According to the applicant, the Iași police had
encouraged her to drop the complaint because her injuries were not serious.
9. In a report of 20 July 2011 the police established, on the basis of the
parties’ statements, that P.I.N. had slapped and pushed the applicant and had
pulled her hair. It was also noted that the applicant had not provided a
medical certificate. It noted, however, that she had withdrawn her
complaint. Consequently, the police decided not to start a criminal
prosecution, and its decision was upheld by the prosecutor’s office attached
to the Iaşi District Court on 2 September 2011. The applicant did not contest
that decision before the courts.

1. Divorce proceedings
10. On 30 May 2011 the applicant sought a divorce based on the sole
fault of P.I.N. He in turn lodged a counterclaim and asked the court to
declare both spouses responsible for the breakdown of their marriage.
11. On 22 June 2012 the Iași District Court dismissed the applicant’s
action on the grounds that no fault could be attributed to P.I.N. for the
breakdown of their relationship, which had been caused exclusively by the
applicant engaging in an extramarital affair. It based its decision on
statements by witnesses brought before the court by both parties, medical
certificates from the applicant, and a report by the child protection authority.
It found as follows:
“In accordance with the applicable legal provisions, a marriage may be dissolved
based on the fault of the plaintiff spouse only in the cases referred to in Article 373 (c)
(at the request of one of the spouses made after a period of two years’ separation). ...
It appears from the witness statements that the relationship between the spouses was
normal and that the problems arose when the plaintiff initiated an extramarital affair...
 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION 3

In June 2010 the plaintiff left the marital home and started living with her lover
[concubin], leaving the children with their father until September, when she took them
away. ...
The plaintiff’s assertions concerning the defendant’s violent behaviour towards the
children are not supported by evidence; the medical certificate does not prove that it
was the defendant who caused the injuries [sustained by the applicant’s son]. ... The
severity of such violent behaviour would necessitate more timely and efficient
intervention by the plaintiff, such as informing the authorities, but also removing the
minors from the violent environment. The plaintiff did not do so, and the fact that she
did not take any of the actions mentioned above proves that the violence was not
perpetrated by the father.
The plaintiff’s allegations are contradicted by her behaviour. In fact, if the minors
were subject to violence, and [were in] real danger from the defendant, they should
not have been abandoned by their mother. In reality, the plaintiff left her home in June
and left the children with their father until September. ...
In the light of the above, it is evident that the plaintiff bears responsibility for the
breakdown of the marriage in that she initiated an extramarital affair and left the
marital home in June 2011. ...
In the present case, there is no evidence that the defendant [was responsible] for the
breakdown of the marriage. ...”
12. On 18 March 2013 the Iași County Court allowed an appeal by the
applicant and granted the divorce based on the fault of both spouses.
13. P.I.N. lodged an appeal on points of law against this decision. He
pointed out that he was a priest and that the Statute of the Romanian
Orthodox Church would not allow him to continue practising as a priest if
the divorce court established that his actions had contributed to the
deterioration of the marriage.
14. On 9 October 2013 the Iași Court of Appeal allowed P.I.N.’s appeal
and quashed the County Court’s decision. Consequently, the court did not
grant the couple’s divorce. It found as follows:
“A court may grant a divorce based on the sole fault of the defendant spouse when
the relationship between the spouses is severely damaged and the marriage can no
longer continue for serious reasons imputable to [the defendant spouse].
A court may grant a divorce based on the fault of both spouses, even when the
request is made by only one spouse – if the evidence shows that both spouses are
responsible for the breakdown of their marriage. ...
The evidence in the file ... did not prove that the plaintiff had left the marital home
because of the defendant ... or that he had been violent with her.
Consequently, it was not proved that the defendant spouse had contributed to the
separation.
For this reason, given that the evidence shows that the plaintiff alone was
responsible for the breakdown of the marriage, a divorce under Article 373 (b) of the
Civil Code cannot be granted.
[As] provided for in Article 373 (c) of the Civil Code, a divorce can be granted
based on the sole fault of the plaintiff spouse only if the couple have been separated
4 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION

for a period of two years and the plaintiff spouse admits responsibility for the
breakdown of the marriage; in the present case the plaintiff ... does not admit such
responsibility.”

2. Incident of 27 November 2013

15. On 27 November 2013 while the applicant was taking the children to
school, P.I.N. blocked her passage, yelled and insulted her, and attacked her
with a crowbar. The children became scared and ran away during the attack.
The applicant, together with two other individuals, attempted to find the
children, while P.I.N. followed her by car.
16. On the same day the applicant and her children were given refuge for
a period of fourteen days at a centre for the protection of victims of
domestic abuse. On 12 December 2013 their stay there was extended for six
months.
17. On 27 November 2013 the applicant lodged a criminal complaint
against P.I.N. in respect of the incident which had taken place that morning.
On 6 February 2014 the Iaşi police initiated criminal proceedings against
P.I.N. for threatening behaviour and domestic violence. On
25 November 2014 the prosecutor’s office attached to the Iaşi District Court
ended the investigation, as there was no evidence to support the applicant’s
allegations. The applicant did not contest that decision before the courts.
18. On 11 December 2013 the applicant applied to the Iași District Court
for a protection order against P.I.N. following the incident of
27 November 2013.
19. On 7 February 2014 a psychological assessment established that the
violent episode had had a negative impact both on the children and on the
applicant. It was noted that the children had been experiencing fear, anger,
and intense negative feelings, while the applicant had been suffering from
episodes of anxiety and depression.
20. On 13 February 2014 the Iași District Court allowed the applicant’s
application (see paragraph 18 above) and issued a protection order against
P.I.N. It ordered him to stay at a distance of no less than 20 metres from the
applicant and her children, and no less than 100 metres from her place of
work and the children’s school. The court relied on witness statements,
statements by the children (who had expressed negative feelings towards
their father) and psychological reports.
21. On 17 February 2014 P.I.N. appealed against the order, but in a final
decision of 6 August 2014 the Iaşi County Court dismissed the appeal and
upheld the protection order.

3. New divorce proceedings

22. On 18 March 2014 the applicant requested a divorce based on the
sole fault of P.I.N. In his counterclaim P.I.N. asked the court to find the
applicant solely responsible for the breakdown of their marriage. On the
 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION 5

date of the last communication to the Court from the parties on this issue
(11 July 2017), the proceedings were pending before the Iaşi District Court.

B. Relevant domestic law

23. The Civil Code, as applicable at the time of the relevant events,
provided as follows:
Article 373 – Grounds for divorce
“A divorce may be granted:
(a) with the agreement of both spouses or at the request of both spouses or one
spouse and accepted by the other spouse;
(b) when, for good reasons [motive temeinice], the relationship between the spouses
has severely deteriorated and their marriage can no longer continue;
(c) at the request of one of the spouses, after at least two years of separation;
(d) at the request of the spouse whose state of health renders the continuation of the
marriage impossible.”

Article 379 – Divorces based on fault: conditions

“(1) In the cases referred to in Article 373 paragraph (b), a divorce may be granted
if the court establishes the sole fault of one of the spouses for the deterioration of the
marriage. However, if both spouses are responsible, the court may grant a divorce
based on the fault [of both spouses], even if only one spouse requested the divorce. If
the fault lies solely with the claimant, the provisions of Article 388 shall apply.
(2) In the cases referred to in Article 373 paragraph (c), a divorce shall be granted
based on the sole fault of the claimant, unless the defendant agrees to the divorce, in
which case a divorce shall be granted without the attribution of fault.”

Article 388 – Right to compensation

“Notwithstanding the right to compensation provided for in Article 390, the spouse
who bears no responsibility for the divorce but who suffers harm as a result of the
breakdown of the marriage may request compensation from the spouse who is at fault
...”
24. Under Article 389 of the Civil Code, a spouse who is unable to work
may request financial support and, under Article 390 of the Civil Code, if
the marriage lasted for at least twenty years the spouse who was not at fault
for the breakdown of the marriage may receive a compensatory allowance
in order to rectify any significant alteration in lifestyle caused by the
divorce.
25. The relevant provisions of the Criminal Code, the Code of Criminal
Procedure, and Law no. 217/2003 on the prevention and fight against
domestic violence are summarised in E.M. v. Romania (no. 43994/05,
§§ 41-45, 30 October 2012).
6 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION

COMPLAINTS
26. The applicant complained under Article 8 § 1 of the Convention that
the refusal to grant her a divorce from her abusive husband had forced her to
maintain a marriage which did not correspond to her real-life situation. It
had furthermore compelled her and her children to return to a violent
environment, which had caused them additional psychological trauma. She
submitted that the evidence substantiating her claims of domestic violence
had been overlooked by the courts, which had led to a breach of her and her
children’s right to physical and psychological integrity.
27. The applicant complained under Article 3 of the Convention that the
refusal to grant her a divorce had constituted a form of tolerance towards
domestic violence, having deprived her and her children of adequate
protection from P.I.N.’s subsequent violent behaviour on
27 November 2011.
28. Under Article 5 Protocol No. 7 to the Convention, the applicant
complained that her request for a divorce had been refused in order to
protect her husband in his capacity as a priest.

THE LAW

A. Complaint under Article 8 of the Convention on account of the

divorce proceedings

29. The applicant complained, under Articles 3 and 8 § 1 of the

Convention, that the refusal to grant her a divorce from her abusive husband
had forced her to maintain a marriage which did not correspond to her
real-life situation. Under Article 5 Protocol No. 7, she also complained that
her request for a divorce had been refused in order to protect her husband
because of his profession.
30. The Court, which is master of the characterisation to be given in law
to the facts of the case (see Radomilja and Others v. Croatia [GC],
nos. 37685/10 and 22768/12, § 114, 20 March 2018), will examine the
complaint from the standpoint of Article 8 alone (see, for example and
mutatis mutandis, Cristescu v. Romania, no. 13589/07, § 50,
10 January 2012, and Jovanovic v. Sweden, no. 10592/12, § 53,
22 October 2015). This provision reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
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
 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION 7

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.”

1. The parties’ observations

31. The Government accepted that the claim fell within the ambit of
Article 8 and that the applicant had suffered an interference with the right to
respect for her private life. They nevertheless argued that the interference
had been in accordance with the law, specifically Articles 373, 379, 388,
and 390 of the Civil Code. More particularly, the Government explained
that, under the provisions of Articles 373 (b) and 379 of the Civil Code, the
courts could not grant a divorce based on the sole fault of the claimant
spouse if the defendant spouse had not requested a divorce as well.
32. They also contended that the interference with the applicant’s rights
had pursued the legitimate aim of protecting the procedural rights of others.
33. The Government argued that the interference had been proportionate
to the legitimate aim pursued. They reiterated that the applicant had not
accepted any responsibility for the breakdown of her marriage, thereby
making it impossible for the domestic courts to grant the divorce. She could
have amended her initial application in order to allow the domestic courts to
grant the divorce. However, although she had been assisted by a lawyer, she
had not used this avenue. Moreover, the Government pointed out that the
divorce had been granted before the incident of 27 November 2013 (see
paragraph 15 above).
34. Lastly, the Government pointed out that, in accordance with the
applicable law, the applicant had been free to lodge a new petition for
divorce, in which case the domestic courts would have examined the
situation in the light of the above-mentioned incident.
35. The applicant pointed out that she had not met the requirements set
forth in Article 373 (c) of the Civil Code as she had not been separated from
her spouse on the date when she had filed for divorce. In any case, she
argued that the courts had ignored the evidence pointing to her spouse’s
violent behaviour, thereby breaching the children’s best interests. She
submitted that the courts had been influenced by the fact that P.I.N. was a
priest and that the divorce would damage his career and tarnish his image as
a righteous and gentle person. She also reiterated that in denying her the
divorce, the courts had artificially maintained the marriage, in contradiction
of her real-life situation. She concluded that the interference with her right
to respect for her private life had not been necessary in a democratic society.

2. The Court’s assessment

36. The Court makes reference to the general principles that it has
established for the protection of the right to respect for private life (see,
notably, Babiarz v. Poland, no. 1955/10, §§ 46-50, 10 January 2017, with
further references). In particular, it reiterates that in the area of framing their
8 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION

divorce laws and implementing them in concrete cases, the Contracting

Parties enjoy a wide margin of appreciation in determining the steps to be
taken to ensure compliance with the Convention and to reconcile the
competing personal interests at stake (ibid., § 47).
37. Turning to the facts of the present case, the Court notes that the
domestic courts examined the facts in detail and in the proper context of
domestic law. The applicant had an opportunity to present her position to
the court and bring evidence. The reasoning of both the first-instance and
appellate court contained a detailed explanation of the interests that were
taken into account, how the evidence was assessed and what the grounds
were for the decision to dismiss her petition for divorce (see paragraphs 11
and 14 above).
38. Moreover, at the time when the courts examined the divorce petition
she was unable to produce conclusive evidence of abusive behaviour on the
part of her spouse (see, in particular, the findings of the court of first
instance, in paragraph 11 above).
39. The Court has previously held that a request for a divorce should not
be granted regardless of the procedural and substantive rules of domestic
divorce law, by a person simply deciding to leave his or her spouse (see,
mutatis mutandis, Babiarz, cited above, § 54).
40. Lastly, the Court notes that the applicant was not prevented from
submitting a new petition for divorce (see paragraphs 22 and 34 above)
which the domestic courts will examine in the light of the new
circumstances of the case and on the basis of the evidence that the parties
will present.
41. In view of the above, the Court considers that the positive
obligations arising under Article 8 of the Convention did not impose a duty
on the national authorities to accept the applicant’s petition for divorce as
formulated by her.
42. Accordingly, this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Articles 3, 8 and 14 of the Convention on

account of domestic violence

43. The applicant complained under Articles 3 and 8 of the Convention

that the refusal to grant her a divorce had constituted a form of tolerance
towards domestic violence, having deprived her and her children of
adequate protection from P.I.N.’s subsequent violent behaviour. The Court
will examine this complaint also under Article 14 of the Convention (see
paragraph 30 above and Opuz v. Turkey, no. 33401/02, § 191, ECHR 2009).
Articles 3 and 14 of the Convention read as follows:
 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION 9

Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”

Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”

1. The parties’ observations

44. The Government argued that the applicant had not complained that
after the incident of 27 November 2013 the authorities had remained passive
and had tolerated the domestic violence to which she had fallen victim.
Therefore, they considered that the applicant had not raised a complaint
under Articles 3, 8 or 14 concerning this aspect. Consequently, such a
complaint did not fall within the scope of the application.
45. The Government contended that the applicant had failed to exhaust
domestic remedies, in so far as she had not lodged a complaint with the
courts against the prosecutor’s decision of 25 November 2014 (see
paragraph 17 above). Relying on E.M. v. Romania (no. 43994/05, § 62,
30 October 2012) the Government argued that the system put in place by the
respondent State had offered the applicant an effective remedy for bringing
her allegations of domestic violence before the authorities.
46. On the merits, concerning the first criminal complaint (see
paragraph 8 above) the Government argued that the applicant had not
submitted a medical certificate, thereby rendering it impossible for the
authorities to assess the severity of her injuries. In this context, her
allegation that the police had advised her to withdraw her complaint for any
lack of serious injuries was ill-founded in so far as the authorities had had
no means of assessing her injuries.
47. As for the complaint raised under Article 14, the Government
pointed out that the police had never tried to dissuade the applicant nor had
they considered that the matters were strictly private.
48. The applicant reiterated that the courts had ignored the abuse
committed by her husband against her and had taken his side because of his
social position and profession. She further argued that in ignoring the abuse,
the authorities had enabled the perpetrator and made it possible for more
violence to take place, in particular the episode having led to the adoption of
the protection order (see paragraphs 15 and 20 above).

2. The Court’s assessment

49. At the outset, the Court notes that the Government suggested that the
applicant had not raised a complaint concerning domestic violence with the
10 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION

Court. However, the Court will not examine this objection because, in any
event, this complaint is inadmissible for the reasons explained below.
50. The Court has already had the opportunity to examine the
mechanism put in in place by the respondent State to combat domestic
violence. It noted that the law allowed victims to bring their grievances
before the domestic authorities and obtain their protection, and that the
system was functional (see E.M. v. Romania, cited above, § 62).
51. Turning to the facts of the case under examination, the Court notes
that the applicant complained to the police on two occasions about her
husband’s aggressive behaviour (see paragraphs 8 and 17 above). Both
times the police investigated the claims (see, in contrast, Opuz, cited above,
§§ 143-44, and Talpis v. Italy, no. 41237/14, § 117, 2 March 2017). With
respect to the first incident, the police considered that P.I.N. had injured the
applicant, but took note that she no longer wished to pursue her complaint
(see paragraph 9 above). The Court does not find any indication that the
authorities disregarded the seriousness of the allegations brought by the
applicant or that they carried out their duties in a perfunctory manner (see,
in contrast, Opuz, cited above, §§ 199-200, and Eremia v. the Republic of
Moldova, no. 3564/11, § 89, 28 May 2013. With respect to the second
incident, the prosecutor concluded that there was no evidence to support the
allegations of domestic violence (see paragraph 17 above). In both cases,
the applicant failed to complain about the prosecutor’s decision.
52. The Court reiterates that there is a duty on the part of the authorities
to assess the opportunity of continuing the investigations even when the
victim withdraws her action (see Opuz, cited above, § 138). However, in the
present case, it was not proven that the violence committed by P.I.N. had
been sufficiently serious to warrant prosecution and that there had been a
constant threat to the applicant’s physical integrity (see, in contrast, Opuz,
cited above, § 168).
53. On this point, the Court reiterates that, under the applicable law, if
the applicant considered that the public prosecutor’s decision could be
argued as not being justified by the available evidence, it was open to her to
appeal to the domestic courts which could, on examination of the provisions
of the domestic law and the evidence, including witness statements and
medical reports, have directed that a prosecution or other investigatory
measures be carried out. The Court has already established that such a
remedy is effective within the meaning of the Convention (see Stoica
v. Romania, no. 42722/02, §§ 105-09, 4 March 2008, and Ciubotaru and
Others v. Romania (dec.), no. 33242/05, § 59, 10 January 2012). The
applicant gave no explanation why, in her particular case, it would not have
been effective in practice. For this reason, the Court cannot but conclude
that the applicant should have pursued the remedy to its completion, and
challenged the prosecutor’s decisions before a court.
 PĂTRĂUCEANU-IFTIME v. ROMANIA DECISION 11

54. The Court also notes that, in addition to the criminal complaint
mechanism, the applicant fully benefited from the authorities’ protection in
the form of her immediate refuge in a centre for the protection of victims of
domestic abuse (see paragraph 16 above) and the protection order issued
against P.I.N. (see paragraph 20 above, and also, in contrast, Opuz, § 172,
and Talpis, § 144, both judgments cited above).
55. For these reasons, the Court concludes that the mechanism put in
place for the protection of victims of domestic violence, in so far as the
applicant made use of it, was effective in practice (see, in contrast, Opuz,
cited above, § 199). The authorities have therefore complied with their
positive obligations.
56. Accordingly, this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 31 January 2019.

Andrea Tamietti Paulo Pinto de Albuquerque

Deputy Registrar President