The European Court of Human Rights lays out a bone chilling set of facts about how police and court justices ignored a mother’s call for help when her 3 year child was repeatedly abused.
Every person that cares about children in Romania should read this judgment. This is not an exception. It is the accepted norm by the local police, justice system and public social workers.
In today’s Chamber judgment in the case the European Court of Human Rights held, unanimously, that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights because the investigation into the allegations of abuse had lasted too long and had been marred by other serious shortcomings, and by four votes to three, that there had been a violation of Article 6 § 1 (right to a fair trial) because the domestic courts had not examined the merits of the applicant’s complaint about the failure to award him compensation, despite it being clearly worded in domestic law that they were under an obligation to rule on the matter of compensation in a case concerning a minor, even without a formal request from the victim.
The Court recalled in particular that Member States should strive to protect children’s dignity and that, in practice, this required an adequate legal framework to protect children against domestic violence.
FACTS OF THE CASE
The applicant was born in 2001 and lives in Bucharest. His parents, C.I. and D.D., separated in April 2004 and divorced in September 2004, mainly because of D.D.’s abusive behaviour towards his wife and their son. The applicant remained with his mother. On 27 February 2004 C.I. called the hotline of the Bucharest Child Protection Authority (Direcția Generală de Asistență Socială şi Protecția Copilului) to report the domestic abuse she and the applicant had been suffering at the hands of D.D. Since then, the case has been monitored by the Authority. On 7 October 2008 the Child Protection Authority certified that since 2004 it had included the applicant in a psychological counselling programme.
On 5 March, 16 April, 7 May and 30 June 2004 C.I. lodged complaints with the Bucharest Police about the alleged violence inflicted by her husband on the applicant. No action was taken on these complaints.
On 1 July 2004 C.I. lodged a new complaint with the police concerning the alleged abuse. The police heard evidence from witnesses on behalf of the applicant and obtained information about the applicant’s situation from the centre where he and his mother had been relocated. Based on the evidence gathered, the police sent the file to the prosecutor’s office attached to the Bucharest District Court (“the prosecutor”).
On 1 November 2005 the prosecutor instituted a criminal investigation against D.D. It heard evidence from C.I., D.D. and six witnesses and examined the expert reports concerning the applicant’s and D.D.’s psychological evaluations. It concluded that the applicant had suffered trauma during his early childhood because of his father who had done everything he could to torment him and to make him suffer.
On 27 December 2007 the prosecutor indicted D.D. for abusive behaviour towards his son.
The Bucharest District Court heard evidence from a psychologist who had observed the applicant during therapy, from C.I. and other witnesses, as well as from D.D., the last mentioned denying having hurt his son. C.I. did not request damages on behalf of the applicant. In a decision of 9 June 2008 the court acquitted D.D. on the grounds that his occasionally inappropriate behaviour towards the applicant had not been severe enough to constitute a crime.
This decision was upheld by the County Court on 19 February 2009, but on 19 June 2009 the Bucharest Court of Appeal quashed this latter decision and remitted the case to the County Court, as it considered that the lower courts should have heard evidence from the applicant and relied on the psychological reports.
On 14 December 2009 the County Court held a private hearing and interviewed the applicant. He told the judges how D.D. used to hit him, lock him in a small room without lights, throw water on him while he was sleeping and call him names. He stated that D.D. had often fought with his mother and that sometimes he had thrown the applicant’s maternal grandmother and aunt – who were bringing food to the child – out of their apartment.
The applicant told the court that he did not want to live with D.D. or even meet him on the street. He was persuaded that D.D. would want to hurt him. He stated that he wished that D.D. would be punished for what he had done to him.
In a decision rendered on 22 December 2009 the County Court convicted D.D. of ill-treatment inflicted on a minor and sentenced him to a suspended penalty of four years’ imprisonment. It considered that the evidence in the prosecution file, in particular the psychological reports and the testimony given by a psychologist, confirmed that the child had suffered trauma as a consequence of his father’s abusive behaviour.
The court also noted that C.I. had not requested damages on behalf of the applicant (see paragraph 9 above). Based on Article 17 of the Code of Criminal Procedure (“the CCP”, see paragraph 24 below), the court, on its own initiative, awarded the applicant 20,000 Romanian lei (RON) in respect of non-pecuniary damage.
Upon an appeal on points of law lodged by D.D., on 7 April 2010 the Bucharest Court of Appeal remitted the case to the County Court and ordered that court to obtain an expert examination of the applicant by the Forensic Medicine Institute.
On 26 April 2012 the County Court rendered a new decision. Based on the evidence before it, notably the expert evaluations, psychologist’s testimony, witness statements, as well as the parents’ and
the applicant’s statements, the County Court considered it established that D.D. had physically and verbally abused his child from 2002 to 2004. It stated:
“The County Court notes that the acts perpetrated by [D.D.] cannot be considered as isolated and random acts of physical punishment which parents can administer to their minor children, but became more severe and caused childhood attachment troubles.”
D.D. was convicted of ill-treatment inflicted on a minor. He was given a suspended sentence of one year’s imprisonment; in addition, his right to be elected and his parental rights were suspended during the sentence and for two additional years.
When sentencing D.D., the court took into account the undue length of the criminal proceedings and that there had been significant periods of inactivity by the authorities involved, in particular by the investigators and the Forensic Medicine Institute.
No award of damages was made. The court did not give any explanation in its judgment as to why it decided not to award compensation to the applicant.
All parties appealed on points of law. Relying on Article 17 of the CCP, the applicant and the prosecutor complained notably about the fact that the County Court had not awarded damages. The Bucharest Court of Appeal examined the parties’ submissions in the light of the evidence before it. It reaffirmed that D.D. had physically and verbally abused his child; his sentence was recalculated based on the same criteria, including the reduction as a remedy for the length of the trial. The court accordingly increased the sentence to three years’ imprisonment and suspended it. The additional penalty of restricting D.D.’s right to be elected and his parental rights was maintained.
The court further considered that in so far as both the prosecutor and the applicant had limited their initial appeals to solely the criminal aspects of the District Court’s decision of 9 June 2008, the County Court had been right in not awarding damages on its own initiative. The relevant part of the decision reads as follows:
“In so far as the prosecutor’s office and the injured party argued that the [County Court] should have examined the award of damages on its own initiative because the injured party was a minor, it is to be observed from the content of the decision under review that both the prosecutor’s office and the injured party had expressly limited their appeals to the criminal aspects of the case.
In this situation, the [County Court] was right in limiting its examination strictly to the issues brought before it.”
The Court of Appeal rendered its final decision on 1 November 2012 and rectified the text of the operative part on 22 November 2012.
ROMANIAN LAW
ARTICLE 33
“(1) A child has the right to respect for his or her personality and individuality and may not be subjected to physical punishment, or humiliating or degrading treatment.
(2) Measures of punishment may only be taken if they respect the child’s dignity; under no circumstances may corporal punishment
or punishment which affects the physical or psychological development or the emotional state of the child be permitted.”
ARTICLE 89
“(1) A child has the right to be protected against abuse, neglect, exploitation, trafficking, illegal migration, abduction, violence, internet pornography, and any form of violence, irrespective of the child’s environment: family, school, medical institution …”
ARTICLE 94
“(1) Abuse of a child is any voluntary act perpetrated by a person in a position of responsibility, trust or authority towards the child, whereby the child’s life, physical, mental, spiritual, moral or social development, corporal integrity, or physical and psychological health are put at risk; it can be classified as physical, emotional, psychological, sexual, and economic abuse.”
ARTICLE 95
“Any act of violence or of deprivation of a child’s rights which threatens the child’s life, physical, mental, spiritual, moral or social development, corporal integrity, or physical and psychological health, perpetrated within the family, is forbidden.”
Articles 98-103 of the Act provide that the Child Protection Authority has an obligation to verify any information concerning allegations of abuse and must have the support of the police in its undertakings.
The Child Protection Authority may seek a court order for interim measures meant to ensure that the child does not (continue to) suffer abuse. Under Article 14 of the CCP, as in force at the relevant time, the victim of a crime had the right to obtain pecuniary and non-pecuniary damages from the responsible person, within the framework of criminal proceedings.
According to Article 17 of the CCP, as in force at the relevant time, if a victim of a crime lacked full legal capacity to exercise his or her rights (as, for example, a minor), the court was under an obligation to examine the possibility of awarding damages on its own initiative. Article 17 read as follows:
“(1) The civil action shall also be initiated and pursued on the court’s initiative, when the aggrieved party is a person without legal capacity or with restricted legal capacity.
(2) To this end, the investigative authority or the court shall ask the person concerned, through his legal representative, to explain the situation concerning the pecuniary and non-pecuniary damage and information concerning the acts that caused the damage.
(3) The court shall examine on its own initiative the matter of compensation for pecuniary and non-pecuniary damage, even without a formal request for compensation from the victim.”
EUROPEAN SOCIAL CHARTER
Romania ratified the European Social Charter on 7 May 1999. The Council of Europe through various conventions and implementing mechanisms as well as large-scale campaigns, is fighting against domestic violence affecting children. In particular, children’s rights are specifically addressed in several articles of the European Social Charter, notably: Article 7 (the right of children and young persons to protection) and Article 17 (the right of children and young persons to social, legal and economic protection).
In his 2008 Issue Paper on “Children and corporal punishment: ‘The right not to be hit is also a children’s right’”, the Council of Europe’s Human Rights Commissioner made a thorough analysis of the situation of domestic abuse against children and the progress made towards ending corporal punishment: Progress towards ending corporal punishment of children at global level.
There is a global context for making quick progress: the key message of the United Nations Secretary General’s Study on Violence against Children, reported to the General Assembly in October 2006, is that no violence against children is justifiable; all violence against children is preventable. The Study urges all States to move quickly to prohibit all forms of violence against children – including all corporal punishment – setting a target of 2009.
“The Study should mark a turning point – an end to adult justification of violence against children, whether accepted as ‘tradition’ or disguised as ‘discipline’. There can be no compromise in challenging violence against children. Children’s uniqueness – their potential and vulnerability, their dependence on adults – makes it imperative that they have more, not less, protection from violence.”
In its Recommendation 1666 (2004) calling for a Europe-wide ban on corporal punishment of children, the Parliamentary Assembly of the Council of Europe considered that “any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity.”
Therefore the Recommendation called for a coordinated and concerted campaign for the total abolition of corporal punishment of children. Noticing the success of the Council of Europe in abolishing the death penalty, it called for Europe to become, as soon as possible, ‘a corporal punishment-free zone for children.’
Furthermore, the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) requires States Parties to prevent violence against women, protect victims and prosecute the perpetrators. It introduces a number of criminal offences for physical, sexual and psychological violence for which more severe sentences are required when the offence is committed against or in the presence of a child.
On 27 June 2014 Romania signed the Convention.
On 17 November 2010 at the 1098th meeting of the Ministers’ Deputies, the Committee of Ministers adopted Guidelines on child-friendly justice (CM/ Del/Dec(2010)1098/10.2).
It reiterated that the best interest of children must be a primary consideration in all matters involving or affecting them and that justice must be adapted to and focused on the needs and rights of the child, including his or her right to respect for his or her physical integrity and dignity. The guidelines recognize the children’s right to legal counseling and to expeditious proceedings.
UNITED NATIONS CONVENTION OF THE RIGHTS OF THE CHILD
The United Nations Convention on the Rights of the Child, also recognizes the children’s right to be protected from domestic abuse and urges States to put in place adequate procedures and mechanisms to deal with the matter (Article 19):
ARTICLE 19
“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programs to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
On 18 April 2011 the UN Committee on the Rights of the Child affirmed that no form of violence against children, however light, could be tolerated, including in the familial sphere, and reiterated the States’ obligation to prevent violence and protect child victims. The Committee further reiterated that corporal punishment, as defined in its general comment No. 8, however light, was also banned. The relevant parts read as follows:
“17. No exceptions. The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.
The Special Representative of the Secretary General of the UN on violence against children actively participates in programmes and activities aimed at tackling the issue of domestic violence against children, to name the most recent: support to the Panama Declaration on Ending Violence against Children adopted by over five hundred faith leaders from 70 countries at the 5th Forum of the Global Network of Religions for Children in May 2017.
In December 2013 UNICEF launched the initiative #ENDviolence which builds on growing public consensus that violence against children can no longer be tolerated and that it can only be stopped by the collective efforts of ordinary citizens, policymakers, governments and international stakeholders. The strategies developed include supporting parents and equipping children with life skills; changing attitudes; strengthening judicial, criminal and social systems and services; and generating evidence and awareness about violence and its human and socio-economic costs, in order to change attitudes and norms.
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
- Judgment was given by a Chamber of seven judges, composed as follows:
Ganna Yudkivska (Ukraine), President, - Vincent A. De Gaetano (Malta),
- Paulo Pinto de Albuquerque (Portugal),
- Iulia Motoc (Romania),
Carlo Ranzoni (Liechtenstein), - Marko Bošnjak (Slovenia),
- Péter Paczolay (Hungary)
and also Marialena Tsirli, Section Registrar.