TW/CW: abuse, violence, attempted su***de

INTRODUCTION

At the beginning of this year, and against the background of an increase in the number of domestic violence offences in Romania[1], we published[2] an analysis of the national legal mechanisms for preventing this phenomenon, while formulating a set of proposals that could form the basis for improving public policies on domestic violence.

However, beyond the completion of the legislative framework, the concrete application of the legal provisions by the courts remains at least as important an issue. Thus, judicial precedent is not a source of law in the Romanian legal system, but this does not affect the indispensable role of case law in the development and understanding of various legal institutions.

Therefore, we intend to briefly present a selection of recent cases (including from 2023) dealing with domestic violence, in order to identify how the Romanian courts deal with such particularly serious situations.

On the case law portal developed by the Superior Council of Magistracy (i.e. REJUST) 61,278 court decisions granting applications for the issuance of protection orders, delivered between 01.01.2011 and 18.01.2024, can be identified. This number represents 39.22%[3] of the total number of court decisions delivered on cases concerning the issuance of protection orders.

1.     THE PASSAGE OF TIME AS A GROUND FOR REJECTING THE APPLICATION FOR A PROTECTION ORDER?

In a case settled by the Cornetu Court[4] in March 2021, the application for a protection order against the plaintiff’s former boyfriend was rejected, despite the fact that successive episodes of aggression by the defendant had been proven. Thus, the plaintiff alleged that, against the background of constant alcohol consumption and the fact that the defendant did not accept separation from the plaintiff, the defendant sent the plaintiff thousands of text messages containing death threats over a period of two years. Moreover, in 2019 the plaintiff obtained a forensic certificate stating that she was seriously injured as a result of a physical assault by the defendant, and several complaints were registered with the police, which the plaintiff withdrew at the defendant’s insistence. The plaintiff also explained to the court that the defendant always carries a knife on his person and that two weeks before she applied for a protection order, the defendant came to the plaintiff’s workplace and said to her  “I will stick a knife in your head”.

In support of her claims, the plaintiff submitted a CD containing audio recordings of threats made by the defendant in November 2020, several months before the application for a protection order was decided.

Also, heard as a witness was the plaintiff’s brother[5], who described the threats the defendant had made to the plaintiff just a month and a half before the claim was settled: he told her “that he is doing bad things to her, that he is waiting for her, that he is putting someone…”. Moreover, the witness also testified that during a violent episode with the plaintiff, the defendant frequently put his hand to his back pocket, where he was suspected of having a knife.

Despite all this evidence, the court dismissed the application for a protection order, finding that there was no imminent danger to the plaintiff which would require a protection order to be issued. Although the defendant’s most recent episodes of proven aggression had taken place a month and a half before the case was settled, the court considered that the facts, which were situated at a significant distance in time, were not sufficient, in the present procedural context, to establish the merits of an application for a protection order against the defendant, since the passage of time mitigated the urgency of the need to take measures by way of a protection order.

However, even if the issuance of a protection order requires proof of a state of danger and implies a restriction of the person’s right to privacy, by temporarily suppressing certain prerogatives (e.g. prohibiting the aggressor from moving in certain specified areas, obliging the aggressor to keep a specified minimum distance from the victim) or by imposing specific obligations (e.g. the obligation of the aggressor to to wear an electronic surveillance system at all times), we consider that a restrictive interpretation of the meaning of the concept of a state of danger by the courts makes it impossible for victims of domestic violence to prove the need for a protection order. Thus, in assessing the relationship between the victim and the aggressor, the evidentiary difficulties faced by the victim could also be taken into account, and it would be unreasonable to reproach the victim for the lack of evidence of the most recent episode of violence when the defendant’s continuous, aggressive conduct has been proven. At the same time, the failure to apply for a protection order immediately may be based on the victim’s fear of being subjected to the tendency to blame the victim, especially in the context where the subjects of domestic violence are close persons; thus, it is to be expected that the victim and the aggressor have common social circles, and that any opprobrium towards the victim’s approach may even come from persons known to the victim.

2.     EPISODES OF DOMESTIC VIOLENCE, CAUSED BY “LACK OF MATURITY” – REJECTION OF THE APPLICATION FOR A PROTECTION ORDER

An application[6] for a protection order was filed with the Alba Iulia Court and it was rejected by the court. The factual situation concerned the tense relationship between two cohabiting parents of a child aged almost 6. The plaintiff stated that she had been “mentally terrorised” and threatened with death on a daily basis throughout her relationship with the defendant (i.e. 7 years), that during the period when she was pregnant, she had been thrown out of the house by the defendant and that the physical violence perpetrated by the defendant against her had taken place in the presence of the frightened and crying child.

The victim also complained of psychological violence, claiming that the defendant restricted her interactions with family and friends, forbidding her to go with her minor daughter to visit her family. In his defence, the defendant argued that he did not agree with the plaintiff’s brother’s attitude towards the minor, without producing any evidence to that effect or further details.

On 27.12.2023, following an episode of violence, the victim filed a lawsuit. Thus, the plaintiff was physically assaulted by the defendant, who pushed her in order to tear off her necklace and then took her phone and car keys. The event was confirmed by the witness heard in the case, who also claimed that the plaintiff was afraid of the defendant because he had threatened to kill her before (!).

During the proceedings on the merits of the case, the prosecutor requested the rejection of the application for a protection order as there was no evidence of physical and psychological violence. The prosecutor also argued that the plaintiff could not be held to be afraid of the defendant in view of the plaintiff’s conduct in court and the direct exchange of lines and questions with the defendant.

At the same time, the court’s reasoning on the ground for rejecting the application for a protection order is interesting. According to the court, the spontaneous conflict between the parties on 27.12.2023 was caused by the lack of maturity of the two, the lack of communication and the dissatisfaction of the respondent who financially supported the family and who considers that he is not appreciated by the petitioner. Thus, the issuance of a protection order would not facilitate communication and encourage them to repair their relationship.

With regard to the victim’s isolation from her family, the court held that the fact that the defendant did not allow her (the plaintiff – n.n.) to visit her family with her daughter could not constitute a trauma, given that he had explained to her why he was opposed to her, namely that she could always go without her daughter. Moreover, the court takes into account that the respondent works abroad to support his family and the trauma to which the plaintiff claims to be subjected cannot exist in the absence of interaction between them and the freedom she has.

With regard to the above, we point out that, according to Article 4 of Law No 217/2003, domestic violence can also take the form of social violence, which takes the form of isolating the person from family, community and friends. Verbal violence is also a form of manifestation of domestic violence and includes the use of insults, threats, degrading or humiliating words and expressions. The fact that aggressions on the victim may have their source in a so-called lack of maturity or financial grievances does not, in our opinion, cancel out or diminish the seriousness of physical violence against the victim.

3.     EMOTIONAL BLACKMAIL, A FORM OF PSYCHOLOGICAL VIOLENCE – GRANTING THE APPLICATION FOR A PROTECTION ORDER

In a case pending before the Găești Court[7], concerning the assaults by the defendant on his former concubine, the court held that the fact that the defendant tried to commit suicide is a form of psychological violence, practically a form of emotional blackmail against the plaintiff. The fact that the defendant’s violent behaviour was also witnessed by his minor children, the youngest of whom was 10 years old, is of particular gravity. According to the plaintiff, the minor needs counselling by a psychologist after the defendant’s suicide attempt.

Thus, the court took into account the defendant’s attempt to take his own life, but also the fact that it is not acceptable to wait for a more serious event to occur before issuing the protection order.

In granting the application, the court also took into account another act of extreme violence against the plaintiff, namely the throwing of petrol at the applicant with the clear intention of setting her on fire. However, the court’s thorough and pertinent analysis of the continuing trauma suffered by the plaintiff during the cohabitation relationship is noteworthy. In addition, only written documents, evidence of the plaintiff’s cross-examination and the hearing of the minor were produced when the protection order was issued, rejecting the defendant’s defence that the application was unfounded. Thus, the minor stated that her father “does not behave very well” with her mother, which convinced the court of the state of danger created by the defendant, both for the plaintiff and for the couple’s two minor children.

In the same sense, in another case, the Constanta Court[8] held that the defendant’s attempt to blackmail the victim into resuming cohabitation reveals the dangerousness of the aggressor, since it is an attempt to subject the victim to personal control by the aggressor. Thus, the above circumstance is likely to create a state of fear and a feeling of helplessness in the victim and is both a form of psychological violence and an act of verbal violence.

Thus, even if the defendant has never used physical violence against the plaintiff, the constant utterance of serious threats, culminating in threats to set fire to the victim’s home, were considered capable of convincing the court that the danger was real, and that there was also a likelihood that a new state of conflict between the parties would arise in the future.

4.     THE EXISTENCE OF INAPPROPRIATE MARITAL BEHAVIOUR DOES NOT JUSTIFY ANY FORM OF VIOLENCE – GRANTING THE APPLICATION FOR A PROTECTION ORDER

Another noteworthy court decision[9] concerns the issuing of a protection order against the plaintiff’s husband, who was exercising acts of violence, mainly economic, motivated by his suspicions of his wife’s infidelity. Thus, the plaintiff applied for a protection order on the ground that she was constantly subjected to verbal violence on the part of the defendant, in the form of threats, obscene words and insults, also confirmed by the witness heard in the case.

Furthermore, as the defendant himself admitted in cross-examination, he deprived the plaintiff of the possibility of using the car which she normally used, including in the context of the fact that the parties’ minor son, who is with his mother, needs to be transported to the educational establishment which he attends. In addition, in the course of a spontaneous conflict, the defendant snatched the telephone from the plaintiff’s hand, destroying it by throwing it and at the same time causing the plaintiff’s fingernail to break. The defendant justified his actions by referring to alleged inappropriate marital behaviour on the part of the plaintiff, stating that he suspected infidelity and was dissatisfied with the frequency of intimate relations with his wife.

In deciding the case, the court ordered a protection order for a period of two months against the defendant, requiring him to maintain a minimum distance of 100 metres from the plaintiff. In so deciding, the court gave effect to the preventive purpose of the protection order, stating that it was necessary to ensure a climate of peace of mind for the plaintiff in order to prevent another violent episode which could degenerate and result in more serious consequences. At the same time, the court pointed out that the defendant has specific legal means at his disposal to exploit the grievances concerning the marriage relationship (e.g. amicable or judicial dissolution of the marriage), the existence of alleged inappropriate conjugal behaviour on the part of the partner not being able to justify violence in any of its forms.

Similarly, in another case, the Lehliu-Gara Court held that preventing the victim from concluding an individual employment contract, in the form of violently prohibiting her from taking up employment, constitutes a form of economic violence between spouses which justifies the issuance of a protection order[10].

We consider such judicial precedents to be welcome in a context where acts of economic violence are less obvious than material acts of physical violence. Moreover, Romania is one of the European countries with the largest gender employment gap[11]. Thus, according to EUROSTAT data for 2022, in the south-eastern part of Romania there is a 25.2% gap between the percentage of men in employment (75.8%) and the corresponding percentage of women (50.6%). This aspect, combined with the fact that we are still confronted, at European level[12], with the awareness of traditional gender roles in private and professional life, makes women particularly vulnerable to domestic violence, also in the form of economic violence. Thus, in the case law of national courts, numerous situations can be identified in which the partners of victims of domestic violence seek to obtain the victim’s exclusive financial dependence on them, the motivations being jealousy[13], the desire for revenge for various domestic conflicts[14] or the need for the victim to take care of household chores. In this respect, it is worrying how often aggressors justify their acts of violence by referring to the victim’s failure to fulfil domestic obligations[15].

CONCLUSIONS

Effective access to justice requires not only the formal existence of judicial procedures, but also an active role for the courts in clarifying the socio-economic realities that lead victims of domestic violence to turn to the authorities. Without wishing to make an exhaustive analysis, we note both rigid jurisprudential perspectives on the facts of domestic violence and situations in which the traumatic effects of the violence to which victims have been subjected have been analysed in depth.

The conclusions of this opinion are aimed at the continuing training of the judiciary on domestic violence, including communication with victims.

At the same time, we believe that there is a need for intensive and multidisciplinary training of police, prosecutors, judges and lawyers on the specifics of domestic violence and for educating the public about the extent and various forms of manifestation of domestic violence

– forcing the victim to embrace a particular religious belief[16], isolating the victim from her own circle of friends[17] or restricting the victim’s ability to use certain goods[18] – are just a few examples found in national case law and are manifestations of domestic violence that should be highlighted and combated.

• Press release entitled Interventions to prevent and investigate domestic violence, available at www.politiaromana.ro/ro/stiri/interventii-pentru-prevenirea-si-investigarea-violentei- domestice1696146397, accessed on 17.01.2024.
• The opinion of the Centre for Legal Resources, entitled Effectiveness of the access to justice for victims and survivors of domestic violence, is available at www.crj.ro/eficienta-accesului-la-justitie- pentru-victimele-si-supravietuitorii-violentei-domestice/
• According to the data available on rejust.ro, following a query of the case law representing judgments granting applications for protection orders. Data consulted on 17.01.2024.
• Judgment no. 1403/2021 of 25.03.2021 of the Cornetu Court, code RJ 25deg52g7, available at www.rejust.ro/juris/25deg52g7.
• Normally, under the provisions of Art. 315 para. 1, point 1 of the Code of Civil Procedure, a party’s relatives and relatives by affinity up to and including the third degree may be heard as witnesses only with the express or tacit consent of all parties. However, it is important to know that in proceedings concerning filiation, divorce and other family relationships – including domestic violence – the relatives and relatives by affinity referred to in Article 315 of the Code of Civil Procedure may also be heard, with the exception of descendants.
• Decision of the Council Chamber no. 5615/2023 of 28.12.2023 pronounced by the Alba Iulia Court, code RJ 396eggd25 (www.rejust.ro/juris/396eggd25).
• Decision no. 2/2024 of 04.01.2024 of the Găești Court, RJ code ded4deg98 (www.rejust.ro/juris/ded4deg98).
• Decision no. 122/2024 of 05.01.2024 pronounced by the Constanta Court, RJ code g87d79d98 (www.rejust.ro/juris/g87d79d98).
• Judgment no. 9610/2023 of 23.10.2023 pronounced by the Constanta Court, code RJ 86884e485 (www.rejust.ro/juris/86884e485).
• Decision no. 660/2015 of 13.10.2015 of the Lehliu-Gara Court, RJ code g99976458 (www.rejust.ro/juris/g99976458).
• https://ec.europa.eu/eurostat/web/products-eurostat-news/w/ddn-20231128-1, consulted on 18.01.2024.
• The European Commission’s Gender Equality Strategy 2020-2025 stresses that social policies should not perpetuate structural gender inequalities based on traditional gender roles in professional and private life. Document available at https://eur-lex.europa.eu/legal- content/RO/TXT/?uri=CELEX%3A52020DC0152, accessed on 18.01.2024.
• Decision of the Council Chamber no. 594/2023 of 01.02.2023 pronounced by the Petroșani Court, RJ code g8g7g93e6 (www.rejust.ro/juris/g8g7g93e6).
• Decision of the Council Chamber no. 170/2020 of 28.02.2020 pronounced by the Tarnaveni Court, RJ code d5g946599 (www.rejust.ro/juris/d5g946599).
• For example, see Decision of the Council Chamber no. 199/2017 of 03.08.2017 delivered by the Fetești Court, code RJ 524589e5g (www.rejust.ro/juris/524589e5g), Final Decision (disinvestment) no. 45/2020 of 13.04.2020 delivered by the Mureș Court, code RJ g2487d59 (www.rejust.ro/juris/g2487d59), in which it was held that since 2017, the petitioner started not to make food, clean the house, wash clothes, wash children, which is why the quarrels between the parties started.
• Decision no. 10228/2021 of 11.10.2021 pronounced by the Bucharest District Court of Sector 3, code RJ 52836979d (www.rejust.ro/juris/52836979d).
• Idem.
• Decision of the Council Chamber no. 170/2020 of 28.02.2020 pronounced by the Tarnaveni Court, RJ code d5g946599 (www.rejust.ro/juris/d5g946599).