Applicant is a Romanian citizen who alleged that her husband had been violent towards her and their children on numerous occasions. The assaults intensified when the applicant initiated divorce proceedings against her husband. The applicant’s husband assaulted and threatened her on multiple occasions, for which she required and obtained medical treatment. She then used her medical records as proof when she lodged formal complaints against her husband at the prosecutor’s office. She told prosecutors of the incidences of violence and the fact that her husband repeatedly locked her out of their shared residence. The police did not pursue criminal charges and only imposed an administrative fine, holding that the applicant had provoked the disputes. A similar pattern of abuse, medical attention, and contact with the authorities occurred over a period of months. The applicant brought the case to the European Court of Human Rights alleging that the State “had failed to protect her from domestic violence and to hold the perpetrator accountable.” The Court found that there were violations of Article 3 and Article 14 of the European Convention on Human Rights, which forbid torture and discrimination, respectively. The Court found that the authorities were aware of the violence against the applicant, and thus they had an obligation to act on the complaints. The applicant exhausted domestic avenues, but without success. The state’s responses did not comply with international standards about required state action to violence against women and domestic violence. (Available in English, Romanian, and Croatian. English version is official.)
Women and Justice: Jurisdiction
The accused raped the victim at the exit of a bar and then decided to take her to their common domicile and continue raping her. On the road, when the victim threatened to report their acts to the police, they decided to murder her. To this end the accused chained the victim and drowned her after hitting her in the head with a rock. The accused were convicted, in first instance, of qualified murder, felony murder, rape, and unlawful personal sequester. Following the appeal of the accused, the Bacau Court of Appeal found that the death of the victim was not the result of the rape and that the accused should have been convicted for murder and qualified murder with the application of the legal provisions regarding aggravating circumstances resulting from committing the crime by two or more persons. (full text decision on file with the Avon Global Center)
Following the divorce of G.M. and G.S., the later violently chased away the claimant and their minor daughter from the common domicile, acquired during their marriage. Due to these violent actions against his wife and their children, the court decided to re-integrate the claimant and to evacuate the accused from the common domicile until the partitioning of the common assets. The decision became final and binding for failure to appeal it. (full text decision on file with the Avon Global Center)
Ms. S.A. was dismissed by I.G.R. based on the fact that she was reaching the standard age for retiring although she chose to continue working. The court of first impression held that the decision of the employer was illegal due to 4 given that it has decided to terminate the employment contract of the claimant solely due to the fact that she had exceeded the standard age for retiring in case of women (58 years) while a man born on the same year could work until the age of 64. The first court held that the national law may establish different ages for state pensions for women and for men, as a social protection measure, but women only have the right and not the obligation to retire at the respective age. Romanian Law No. 202/2002 regarding the equal treatment between women and men prohibits 4 by an employer. On appeal, the Appeal Court maintained the decision of the first court, considering that dismissal solely based on reaching the qualifying age for a state pension, for which the age is different under national legislation for men and for women, constitutes discrimination on grounds of sex. A general dismissal policy of an employer implying the dismissal of a woman having as sole reason the standard retiring age, which is different for women and men, is 4 prohibited by the national and European legislation. Given the priority of European legislation over the national legislation, the court cited in its reasoning the case, Marschall v. Southampton and South – West Hampshire Area Health Authority of the Court of Justice of the European Union dated 26 February 1986.
The court of first instance decided the divorce of D.B.N. and D.J. on the ground of common fault and placed the minor child in the custody of her father. D.B.N. appealed the decision to the Isai Tribunal, and the appeal court decided to place the minor child in the custody of D.B.N., her mother considering this to be in the best interest of the minor. It explained that the fact that the parents of D.J. were taking care of the minor did not represent sufficient reason for placing her in his custody, as wrongfully held by the court of first instance. The Court of Appeal rejected the appeal of D.J. against the decision of the Iasi Tribunal based on the fact that the minor is attached to her mother and to the domestic violence of her father both against the mother and the minor child.
Both the Prosecutors’ Office attached to the Iasi Tribunal and the accused T.D. appealed the decision in first instance of the Iasi Tribunal regarding the conviction of T.D. for violence and manslaughter. The accused T.D. and the victim T.P. used to drink large quantities of alcohol. One night, following the victim’s refusal to prepare food, the accused hit her and the victim collapsed, hitting her head and throat on the stove. The accused continued hitting the victim and at the end lifted her and putted her on the bed. The victim was not able to get up from the bed for a few days, but she was conscious. However, her status deteriorated, and at the request of the accused, she was brought to hospital. Nonetheless, she died a few days later. The court of first instance convicted the accused for violence causing death (homicide), but case had been prosecuted under the charge of qualified murder. Therefore, in accordance with Romanian law, the Court of Appeal considered the decision of the first instance null and void, and re-sent the case to the court of first instance for re-hearing in line with the decision of the Court of Appeal.
The accused R.M. was convicted for violence against his wife. In a second appeal submitted by the prosecutor, the Appeal Court held that the factual circumstances of the case were correctly retained by the inferior courts but the sentence did not take into account the aggravating circumstance that the victim was the wife of the accused person. The Romanian Criminal Code provides as an aggravating circumstance the fact that the criminal act has been done against a member of the family. The Appeal Court therefore decided to increase the sanction applied to R.M. based on the aggravating circumstance.
The accused L.D. entered into the house of an 80-year-old woman, exercised physical violence against her, and raped her. The woman died as a result of the violence, and L.D. was convicted for homicide. Related to the rape the trial court considered that due to the lack of the victim’s complaint (a condition precedent for criminal investigations in case of rape) L.D. could not be convicted of rape. In the appeal submitted by the prosecutor, the Appeal Court held that although in normal circumstances the lack of a victim’s complaint will prevent criminal investigations of an alleged rape, in special cases, where the victim died, the criminal investigations shall start ex-officio. As any person needs to be treated with dignity during criminal investigations, the memory of the victim needs to be treated in the same way. The Appeal Court explained that the right of a person to file a criminal complaint for rape had been hindered by an unpredictable and invincible event, the death of the victim of the rape.
Due to inconsistencies in the application of the Romanian law criminalizing forced sexual relations with family members of opposite sex through constraint or taking advantage of the victim’s inability to defend herself or express her will, the High Court of Cassation and Justice has been called upon by the General Prosecutor to establish the legal qualification of the facts representing both rape and incest. Following analysis of the relevant legal aspects, the court decided that such cases shall be considered as rape against a family member simultaneously with incest and shall be sanctioned accordingly.