The Impossibility to Punish Domestic Violence in Contravention Cases – Unconstitutional

On Thursday, 22 November 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of certain provisions of Article 781 of the Contravention Code (Application no. 111g/2018). 

The circumstances of the case

The application was referred to the Court, ex-officio, by Ms. Maria Frunze, who is a judge at the Chișinău District Court, in a pending process examining a violation notice on the offence provided by Article 781 [Domestic violence] of the Contravention Code against an individual who reached the general retirement age.

The applicant contended that the two sanctions provided by Article 781 of the Contravention Code - unpaid work and contravention arrest - could not be applied by the court of law in case the offender has reached the general retirement age. This is substantiated by Articles 37 para. (3) and 38 para. (6) of the Contravention Code providing that unpaid work may not be ordered without individual's consent and contravention arrest may not be applied against individuals who have reached the general retirement age. In this respect, sanctions imposed against acts of domestic violence committed by individuals who have reached the general retirement age would not be rendered effective. Accordingly, the applicant alleged that the sanction provided by Article 781 of the Contravention Code is in breach of Articles of 7, 8, 16, 20, 26 and 54 of the Constitution.

The Court's assessment

The Court assessed the application in light of procedural obligations stemming from Article 24 para. (2) of the Constitution which safeguards the right to life, physical and mental integrity.

The Court noted that State authorities are under the positive obligation to put in place and to actually apply a sanctioning system against all forms of domestic violence and to provide victims with sufficient safeguards.

The Court observed that while contravention arrest cannot be applied ope legis in case of individuals who reached the general retirement age, the unpaid work may be ordered depending on individual's consent to execute such a sanction. In this context, the Court found that in case of an offence provided by Article 781 of the Contravention Code which was committed by an individual who has reached the general retirement age, the sanctioning for such an offence is conditioned exclusively upon the individual's consent to execute the sanctioning of unpaid work. With no such consent of the individual, a vacuum in sanctioning this offence persists.

The Court assessed the proportionality of the two conditions imposed by Articles 37 para. (3)  and 38 para. (6) of the Contravention Code. The conditions in question envisage, on the one hand, the consent of the individual to perform the unpaid work and, on the other hand, the prohibition to apply the measure of contravention arrest against individuals who have reached the general retirement age.

It therefore assessed:

(a)   Whether the consent of the individual to perform unpaid work is a proportional condition

In the instant case, the Court considered it has to put in balance a possible refusal of the individual to perform unpaid work and the positive obligation of State authorities to apply administrative sanctions against acts of domestic violence.

The Court noted that in case the individual does not consent to perform unpaid work, the court of law is positioned to opt for the measure of contravention arrest. The Court further noted that the contravention arrest may not be applied in case the offender is an individual who has reached the general retirement age. Accordingly, in case of a lack of consent to perform unpaid work, the authorities cannot apply other sufficiently dissuasive sanctions.

In this respect, the Court noted that in the absence of a punitive alternative, the individual's consent to perform unpaid work appears to be insignificant as compared to the obligation of State authorities to guarantee an effective system of sanctioning all forms of domestic violence under Article 24 paragraph (2) of the Constitution and Article 3 of the European Convention of Human Rights.

(b)  Whether the prohibition on applying the measure of contravention arrest against individuals who reached the general retirement age is proportional

The Court found that the prohibition in question is prescribed by law.

The legitimate goal of this prohibition also takes into account the status of pensioners, their health condition, vulnerabilities etc.

As regards the prohibition to apply the measure of contravention arrest, the Court observed that it has no equal in criminal law. The old age of an individual represents a mitigating circumstance in light of criminal law.

The Court considered that contravention arrest has a sufficiently punitive nature for the same principle provided by criminal law to become applicable.

The Court assessed the impact of the lack of contravention arrest as a punitive measure being applied against individuals guilty of domestic violence and who have reached the general retirement age, in the context they decline to perform unpaid work. Based on statistics, the Court observed that there is a sufficiently high number of individuals who have reached the general retirement age and who cannot be sanctioned with contravention arrest for domestic violence. The Court held that nonenforcement of a sanction in this situation would manifestly violate the requirement of public trust in legal order and in the judiciary.

The Court balanced the prohibition in question and the procedural obligation of State authorities to put in place an efficient system sanctioning all forms of domestic violence, in light of the following considerations:

(i)        ordering unpaid work without the consent of the individual does not suffice. If not executed, it cannot be substituted with the measure of contravention arrest;

(ii)      the legislator did not provide for other sanctions for instances the measure of unpaid work is not executed;

(iii)    the fine, as a sanction, cannot be applied, as it would indirectly affect the victim;

(iv)    there is no prohibition in the criminal law that would equal the contravention arrest against individuals who have reached the general retirement age;

(v)      there is a sufficiently high number of individuals who have reached the general retirement age and who cannot be sanctioned with contravention arrest for acts of domestic violence.

Based on this test, the Court concluded that an absolute prohibition on applying the measure of contravention arrest in case of individuals who have reached the general retirement age is disproportionate in relation to the procedural obligation of State authorities to put in place an effective system of sanctioning all forms of domestic violence.

Also, the Court found that a one-year general limitation period for bringing contravention procedures against an individual may pose a problem in the context of the contravention provided by Article 781.

The Court's conclusions

For the foregoing reasons, the Court has partially admitted the application referred to the Court by Ms. Maria Frunze, judge at the Chișinău District Court.

It declared constitutional the following provisions of the Contravention Code of the Republic of Moldova, adopted by the Law no. 218 of 24 October 2008:

-        the text "shall be punishable by unpaid community service from 40 to 60 hours or by contravention arrest from 7 to 15 days" of Article 781;

-        Article 37 para. (3) to the extent that, in case of an offence under Article 781, the courts may apply the sanction of unpaid community service without individual's consent;

-        Article 38 para. (6) to the extent that, in case of an offence under Article 781, the courts may apply the contravention arrest against individuals who have reached the general retirement age, if their health condition allows for it.

Pending the amendment of contravention law by the Parliament, the court may apply fines, as an exception, for offences provided by Article 781, only in the following cases, in this consecutive order: (i) the unpaid work ordered without individual's consent is not performed; (ii) contravention arrest cannot be applied out of reasons related to health condition, in case of individuals who have reached the general retirement age, and (iii) the fine would not indirectly affect the victim.

Pending the amendment of contravention law by the Parliament, the limitation period for the offence provided by Article 781 shall constitute 5 years.

This judgment is final, it cannot be appealed, shall enter into force on the date of its adoption, and shall be published in the Official Journal of Moldova. 

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