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THIRD
SECTION
CASE OF C.A.S. AND C.S. v. ROMANIA
(Application
no. 26692/05)
JUDGMENT
STRASBOURG
20 March
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of C.A.S. and C.S. v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and Santiago
Quesada,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26692/05) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Romanian nationals, Mr C.A.S. (“the
first applicant”) and Mr C.S. (“the second applicant”),
on 11 July 2005. The President of the Section decided not to have
their names disclosed (Rule 47 § 3 of the Rules of Court).
- As
Mr Corneliu Bîrsan, the judge elected in respect of Romania,
had withdrawn from the case (Rule 28 of the Rules of Court), the
President of the Chamber appointed Mr Mihai Poalelungi to sit as ad
hoc judge (Article 26 § 4 of the Convention and
Rule 29 § 1 of the Rules of Court).
- The
applicants, who had been granted legal aid, were represented by Mr L.
Hincker, a lawyer practising in Strasbourg. The Romanian Government
(“the Government”) were represented by their Agent,
Mrs I. Cambrea, of the Ministry of Foreign Affairs.
4. The
applicants raise several complaints related to the repeated
rape and other ill-treatment suffered by the first
applicant. In particular, the first applicant alleged that the
criminal investigations into those facts had been ineffective, and
that there had been an interference with his right to respect for his
private and family life.
- On
15 June 2010 the application was
communicated to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, son and father, were born in 1990 and 1954
respectively and currently live in Iasi.
A. The alleged rape and violence inflicted on the first
applicant
1. Applicants’ version of the abuse
- From
January 1998 to April 1998, the first applicant, who was then a
seven year-old boy, was allegedly subjected to repeated rape and
violence by P.E.
- In
January 1998, the child was followed home from school by P.E. In
front of the applicant’s family’s apartment, P.E. grabbed
the key from his hand, opened the door and forcefully pushed the boy
inside. He hit the child several times in the stomach. He pulled the
applicant’s clothes off and tied his hands and legs and gagged
him with strips of white cloth that he had taken out of his trouser
pocket. Then P.E. dragged the boy into the kitchen, removed a piece
of furniture from against the wall and placed it near the couch. He
bent the child over the furniture and sexually abused him. He then
removed the gag and forced the child into oral sex. P.E. hit the
applicant again several times in the stomach, head and genitalia,
untied him and told him to put his clothes on. He threatened the
child with a knife and warned him that he would kill him if anyone
found out what had happened.
- The
first applicant was too scared to scream during the assault.
- The
abuse continued during the following months, several times per week.
At a certain point, P.E. made a copy of the applicant’s key so
he could enter the apartment. Sometimes he would wait for the child
inside, sometimes he came with a dog and once with other persons,
including two minor children. Before leaving the apartment, P.E.
sometimes stole food and small sums of money.
- Eventually
the applicant told his brother and father about what was happening to
him.
- After
the events the first applicant changed school and in October 2005
the family finally moved from Bacău to Iaşi, following the
advice of the school psychologist.
2. The Government’s position
- The
Government did not contest the description of the facts by the first
applicant.
B. Criminal investigations into the allegations of rape
and violence
1. Police investigations
- On
27 April and 4 May 1998 on behalf of his son, the second applicant
reported the sexual abuse and violence inflicted on the child to the
Bacău Police. He accused P.E., S.P. and L.I.D. He reiterated his
complaints on 18 and 28 May, 4, 8 and 9 June and on 19 July 1998.
- The
police started investigating the case.
- On
18 May 1998, at the request of the investigators, the first applicant
underwent a medical examination at the Bacău Clinic. The record
noted:
“... healing anal lesion and hypotonia of the anal
sphincter. No signs of violence on the body ... The lesions
necessitate 16-18 days of medical care and could have been caused by
anal intercourse.”
A
medical certificate issued on 19 May 1998 at the request of the
police, summarised the findings of the examination.
- On
12, 15 and 29 June 1998 P.E. gave statements to the police. He
claimed that he had not been in the area during that period, and that
he did not know the applicants’ family. He had only been in the
building once, on New Year’s Eve, for approximately ten
minutes. He admitted that he used to take his sister’s dog out
for a walk but he had not done so in a while; during the time in
question he had been training a similar dog, in the afternoons, from
5 p.m. to 7 p.m. During a polygraph test, P.E. showed simulated
behaviour when asked whether he had had sexual intercourse with the
first applicant.
S.P.
and L.I.D. denied any participation in the abuse.
- The
first applicant was interviewed several times by the investigators.
He gave details about the facts. His statements were recorded on 19
June 1998, 12 October 2001, 31 May 2002 and 25 March 2003. In some of
the interviews he declared that he had told his brother and father
about the abuse, but in others he stated that he had not mentioned
anything to anyone. In his first statement he also told the police
that the day after he had told his father about the abuse, his
parents had allowed him to return on his own from school and he had
remained alone in the apartment after school.
- The
second applicant gave statements to the investigators, relating the
facts as his son had described them.
- On
15 December 1999 the first applicant’s mother declared that she
had suspected something was going on as her son’s voice on the
phone had sometimes been trembling and as she had sometimes found the
house untidy and litter in the bathroom, but that she had thought the
children were responsible. Before the prosecutor she supplemented her
statements and stated that during that time she had noticed that food
and money had disappeared from the house.
- The
first applicant identified P.E. in a line up at the police
headquarters.
- Several
other witnesses were interviewed by the police, including neighbours
and acquaintances.
R.M.,
the neighbour from upstairs, stated that she had no knowledge of what
had happened in the applicants’ home. A few days later she
changed her statements and declared that she had seen a man who
fitted P.E.’s description entering the applicants’
apartment with a dog during the period in question. She explained
that she had been afraid that if she talked about what she had seen,
the neighbours would have thought she had been spying on them. During
the investigations and court proceedings R.M. changed her statements,
claiming both to have seen P.E. entering the victim’s apartment
several times, between February and March, and to have seen him
entering only once.
- On
10 January 2000 the police confronted R.M. and P.E. They both
maintained their previous statements.
- B.V.
informed the police that at the second applicant’s request, he
had followed the applicant to school and home a few times in April
1998. He had noticed P.E. in the vicinity several times, and on 22
April 1998 had seen him forcing the first applicant into the
apartment.
R.I.,
R.M.’s adolescent son, stated that he had seen P.E. entering
the victim’s home from January to April, sometimes with a dog.
On 27 June 1998 the police organised a confrontation between R.I. and
P.E. R.I. maintained that he had seen P.E. entering the apartment
with the victim and then had heard the child scream. P.E. denied
having seen R.I. or having abused the first applicant.
- The
investigators also searched the applicants’ and P.E.’s
homes, but found no further evidence to support the accusations. They
checked the record of calls made from the applicants’ telephone
during the period under investigation. They also checked and
confirmed that the upstairs neighbours could see, from the hallway,
who entered the applicants’ apartment.
- During
the investigations the first applicant underwent several medical and
psychiatric evaluations in the presence of his father.
- On
1 February 2000 a new medical examination by the Bacău
Laboratory of Forensic Medicine, ordered by the police, confirmed the
findings of the expert examination of 18 May 1998. The doctors
considered that it was impossible to tell whether the perpetrator had
been an adult or a minor. They concluded that the lesions could only
have been caused by repeated sexual abuse.
2. The prosecutors’ decisions
- On
16 June 2000 the Prosecutor’s Office attached to the Bacău
District Court decided to discontinue prosecution of P.E. and not to
prosecute S.P. and L.I.D. The second applicant objected.
- On
27 July 2000 the prosecutor at the Bacău District Court allowed
the objection and sent the case back to the police for further
investigation.
- On
28 February 2001 the Prosecutor’s Office attached to the Bacău
District Court again decided to discontinue the prosecution. On 5
September 2001 the second applicant’s objection was allowed by
the Prosecutor’s Office attached to the Supreme Court of
Justice. The latter sent the case to the District Court prosecutor
and ordered him to continue the investigation.
- On
7 March 2002 the prosecution file was sent to the Prosecutor’s
Office attached to the Bacău County Court with an instruction to
continue the investigation.
- On
16 September 2002 the prosecutor at the Bacău County Court
discontinued the prosecution of P.E. and decided not to prosecute
S.P. and L.I.D. on the ground that they had not committed the crimes.
It was also decided to continue the investigation in order to
identify the criminals.
- The
second applicant appealed against the decision. On 11 November
2002 the Prosecutor’s Office attached to the Bacău Court
of Appeal reversed the decision.
- On
8 April 2003, the prosecutor at the Bacău County Court committed
P.E. to trial for rape and unlawful entry of the victim’s home
(violare de domiciliu). It was also decided not to prosecute
S.P. and L.I.D. The first applicant sought civil damages in the
amount of 300,000,000 Romanian lei.
- During
this period some witnesses were brought in again for interviews and a
new expert report was drafted concluding that the anal lesions
suffered by the first applicant may have been produced ten to
twelve days before the expert examination of 19 May 1998. On 31
March 2002, the second applicant refused to subject his son, the
first applicant, to another psychiatric evaluation.
3. Complaints about the investigations
- Throughout
the investigation and prosecution, the second applicant complained
several times about the length of the proceedings. His complaints
were dismissed by the Prosecutor’s Office attached to the Bacău
District Court on 16 August 1999 and 29 February 2000. On 12
July 2002 the Bacău County Police answered a similar complaint,
outlining the latest procedural steps taken in the case.
- In
addition, on 22 November 2001 the second applicant complained that
he, his family and some of the witnesses had received threats from
P.E. On 8 November 2004 P.E. threatened the applicants with
retaliation. They reported the incidents to the police.
- On
20 April 2004 the second applicant complained about the prosecutor’s
decision not to prosecute S.P. and L.I.D. On 21 May 2004 the Bacău
District Court dismissed the complaint. The decision became final as
the parties did not appeal against it.
C. First-instance proceedings
- The
case was initially referred to the Bacău County Court. However,
on 27 May 2003 the County Court changed the legal classification of
the crimes and sent the case to the District Court. It noted that at
the time when the facts occurred, males were not recognised as
potential victims of rape. Furthermore, at the time of the
investigations, same-sex relations had been decriminalised. Therefore
the facts under investigation could only be classified as the crime
of “sexual perversion” and “sexual corruption of a
minor”, which were under the jurisdiction of the district
courts.
The
Bacău District Court started the examination of the case. On 13
May 2003 the first applicant gave a detailed description of the
facts. P.E. denied having committed any crime against the applicant.
- In
September 2003 the first applicant’s older brother gave a
statement to the court. He related what his brother had told him
about the abuse. He further stated that around that period (January
to April 1998) his brother’s behaviour had changed, he had
refused to eat, had constantly been scared and had sometimes had
blood on the back of his underpants. He declared that their mother
had also noticed those blood stains.
- The
first applicant’s mother admitted that neither she nor her
husband had taken time off work to accompany the child and see what
had happened, although she had noticed the changes in his behaviour
and sometimes even physical signs of potential abuse.
- Several
witnesses were interviewed by the court, including the neighbours
R.I. and R.M., as well as S.P.
- Between
20 December 2002 and 25 March 2003, the first applicant underwent a
psychological evaluation. The final report revealed that he showed
anxiety when shown his alleged aggressor’s image, uncertainty
and social isolation; that he wished to have the routine of a “normal
child”; and that he had a tendency to exaggerate and invent
things, common to sufferers of trauma caused by such violence,
especially children.
- On
3 June 2003 the second applicant complained about the length of the
proceedings and about P.E.’s request for release. On 11 August
2003 he complained that P.E. had been released from detention.
- On
17 November 2003 the first applicant underwent a psychiatric
evaluation in Iaşi Hospital No. 7. The examination commission
noted that he was scared, insecure, had difficulty concentrating and
showed the frustration associated with the experience of not being
believed by others.
- On
5 May 2004 the Bacău District Court acquitted P.E., on the
ground that the crimes had not been committed by him.
- The
court noted in particular that the parents had failed to notice the
change in their child’s behaviour and to notify the authorities
in good time, but rather had waited until after the abuse had been
going on for some time. The court also observed that the descriptions
of the facts given by the first applicant and the witnesses had
not been accurate and differed in the details and pointed to the fact
that the second applicant had tried to influence some of the
witnesses to give statements against P.E. The court also attached
importance to the fact that the searches performed during the
criminal investigation had revealed no traces of P.E.’s
presence in the victim’s apartment or any evidence in P.E.’s
apartment to support the accusation against him. Lastly, the court
considered that the findings of the medical report were not
conclusive as to P.E.’s guilt.
D. The appeal proceedings
- On
4 October 2004 the Bacău County Court dismissed the appeals
lodged by the prosecutor and the applicant against the judgment given
by the District Court.
The
County Court found that there were contradictions in the statements
given by the parties and witnesses. It acknowledged that such
contradictions may have been caused by the time that had lapsed
between the events and the examination of evidence by the courts, but
considered that the length of the investigations had not been the
main cause of the discrepancies. Accordingly, it noted that from the
beginning of the investigation the second applicant and the witnesses
had given contradictory descriptions of the aggressor in their
various statements and considered that some of the witnesses had been
dishonest and that the victim’s father had tried to influence
several individuals to testify against P.E. The court also considered
that the police line up had not been carried out properly, as the
persons chosen to stand with P.E. had differed in physical
appearance, in particular their height, length of hair, and posture.
It also noted that only one family from the whole block of flats had
heard the child screaming. The court was concerned by the fact that
despite the alleged physical evidence of abuse (blood stains for
example) and other odd occurrences around the house (missing food,
moved furniture), the parents had waited a long time before reporting
the alleged abuse to the police. Lastly, it noted that his
psychological profile indicated that the first applicant was prone to
exterior influence and fantasizing, and considered that he might have
“put his parents on a false track, either because he did not
know who the aggressor was or because he wanted to hide the latter’s
identity”.
On 20
January 2005 the Bacău Court of Appeal dismissed, by two votes
to one, the appeals in cassation lodged by the prosecutor and the
applicant. It reiterated the arguments put forward by the County
Court. The dissenting judge argued that the evidence in the file was
sufficient to convict P.E. for sexual corruption and unlawful entry.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
- At
the date when the abuse against the first applicant occurred, the
relevant provisions of the Criminal Code read as follows:
Article 197 Rape
“(1) Sexual intercourse with a female
through coercion or taking advantage of her incapability of defending
herself or of expressing her will, is punishable by three to ten
years of imprisonment.
(2) The sentence will be from five to fifteen
years if:
(a) the act was committed by two or more than
two persons together; ...
(3) The sentence will be from ten to twenty
years if the victim is not yet fourteen years old ...”
Article 198 Sexual intercourse with a minor female
“(1) Sexual intercourse with a female
who has not yet reached fourteen years of age is punishable by
imprisonment of from one to five years.”
Article 200 Sexual intercourse between persons of the
same sex
“(1) Sexual intercourse between persons
of the same sex, carried out in public or which causes a public
scandal, is punishable by imprisonment of between one and five years.
(2) Sexual intercourse by an adult with a
juvenile of the same sex is punishable by imprisonment of between two
and seven years and loss of certain rights.
(3) Sexual intercourse with a person of the
same sex who is incapable of defending him or herself or of
expressing his or her will, or which is performed through coercion,
is punishable by imprisonment of between three and ten years and loss
of certain rights.”
Article 201 Sexual perversion
“(1) Acts of sexual perversion
committed in public which cause a public scandal are punishable by
imprisonment from one to five years.”
Article 202 Sexual corruption
“(1) Acts of an obscene nature
committed to a minor or in his or her presence are punishable by
imprisonment from three months to two years or by a fine.”
- Articles
197 and 198 have been amended successively in order to recognise
males as potential victims of rape and statutory rape, by
Law no. 197/2000, which entered into force on 15 November
2000 and by Emergency Ordinance no. 89/2001, which entered into force
on 26 June 2001. The latter Ordinance also decriminalised consenting
same sex intercourse.
- On
28 September 1990 Romania ratified the United Nations Convention on
the Rights of the Child (“the CRC”), in force since
2 September 1990. The CRC stipulates that the best interests of
the child and his or her dignity shall be a primary consideration in
all actions concerning children (Article 3).
- The
CRC urges Member States to take all appropriate measures to protect
children from all forms of violence, including sexual abuse, and to
provide for the recovery and social reintegration of victims. The
relevant articles read as follows:
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
programmes 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.”
Article 34
“States Parties undertake to protect the child
from all forms of sexual exploitation and sexual abuse. For these
purposes, States Parties shall in particular take all appropriate
national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to
engage in any unlawful sexual activity;”
Article 39
“States Parties shall take all appropriate
measures to promote physical and psychological recovery and social
reintegration of a child victim of: any form of neglect,
exploitation, or abuse; torture or any other form of cruel, inhuman
or degrading treatment or punishment; or armed conflicts. Such
recovery and reintegration shall take place in an environment which
fosters the health, self-respect and dignity of the child.”
- The
Committee on the Rights of the Child interpreted the text of the CRC
in its General comments. Its latest General comment no. 13 (2011)
on the right of the child to freedom from all forms of violence is
aimed at guiding State parties in understanding their obligations
under Article 19 of the CRC, building on existing documents and
reflecting on the evolution of the protection in question. The
Committee acknowledged the efforts of the States to prevent and
respond to violence. It nevertheless found that the States were
lagging behind in their obligations:
Ҥ 12 ...In
spite of these efforts, existing initiatives are in general
insufficient. Legal frameworks in a majority of States still fail to
prohibit all forms of violence against children, and where laws are
in place, their enforcement is often inadequate.”
The
Committee expresses the view that States are under a “strict
obligation” to undertake all appropriate measures to fully
implement this right for all children (paragraph 37 of the General
comment). Among the State obligations, the Committee identified the
need to: review and amend domestic legislation in line with Article
19 of the CRC; ensure protection to child victims and effective
access to redress and reparation; enforce law in a child-friendly
way; and provide for counselling support (paragraphs 41-44 of the
General comment).
The
Committee develops further on the content of the “protective
measures”, stressing the importance of prevention, the need for
an easily accessible report mechanism, the importance of rigorous and
child-sensitive investigation and of effective and child-friendly
justice where due process must be respected (in particular paragraphs
45-58 of the General comment).
- On
25 October 2007 the Council of Europe, recognising that the
well-being and best interests of children are fundamental values
shared by all member States, adopted the Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse urging the
Member States to adopt measures to protect children from any form of
abuse and to put in place a system capable of punishing any such
acts.
On 17
May 2011 the respondent State ratified that Convention which entered
into force in respect of Romania on 1 September 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
- The
first applicant complained under Articles 3 and 8 of the Convention
about the violence and sexual abuse he was subjected to by P.E. with
the help of S.P. and L.I.D. Both applicants complained under Article
8 that P.E. destroyed their home and family and that they had been
forced to leave town after the events in order to reconstruct a
normal life.
- Article
3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- Article
8 of the Convention 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 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.”
A. Admissibility
- The
Government averred that the applicants’ complaint under
Article 8 refers only to the fact that the alleged perpetrators
had been acquitted and that the applicants had been forced to leave
town in order to protect the first applicant after the incidents. In
their view, these aspects should not fall within the realm of Article
8 of the Convention and in any case the applicants could not be
considered victims of a violation of that Article. They put forward
that the applicants had chosen to leave and had not been forced to do
so by the authorities; the applicants had also waited for nine months
after the end of the proceedings and almost seven years after the
events before they had actually moved. The Government also pointed
out that the applicants had failed to complain to the authorities
about any impact on their private and family lives of the allegedly
ineffective investigation.
- The
applicants contested those arguments.
- The
Court notes that the second applicant only complains about the fact
that he and his family had been forced to leave town after the
events. These allegations are also raised by the first applicant in
his complaint under Article 8. However, there is no indication in the
file that the authorities had in any way contributed to that
departure. Furthermore, the applicants had not complained as such to
the authorities about the fact that they had had to leave town.
It
follows that this part of the complaint raised by the first applicant
and the whole complaint raised by the second applicant are manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 (a) and 4 of the Convention.
- Furthermore,
the Court notes that the first applicant complained about
ill-treatment inflicted by a third party. At no point did he claim
that State officials had been involved in the actual abuse.
It
follows that, as far as the complaint concerns the material aspects
of Article 3 of the Convention, it is incompatible ratione
personae with the provisions of the Convention within the meaning
of Article 35 § 3 (a) and must be rejected in
accordance with Article 35 § 4.
- Lastly,
the Court considers that in so far as it concerns the effectiveness
of the investigations and their impact on the first applicant’s
family life, the remainder of the complaint raised by the first
applicant under Articles 3 and 8 of the Convention is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ positions
- The
first applicant pointed out that abuse such as that he had suffered
had been qualified by the Court as torture. He made reference to the
case of Aydın v. Turkey (25 September 1997, Reports of
Judgments and Decisions 1997 VI), where the victim had been
in detention. As for the proceedings in the case at hand, he argued
that the investigation had been neither prompt nor effective, that
the prosecutor had waited for three weeks before opening the
investigation and for two months to question P.E. He also contended
that some essential investigative steps had not been taken by the
police, in particular the taking of DNA samples from the applicants’
flat, from the accused persons and from the dog; while some measures
had been overemphasised, despite their limited relevance to the
facts. The first applicant also complained about the manner in
which the courts had weighted the evidence, pointing out, in
particular, that the courts had discarded the direct evidence proving
P.E.’s guilt (polygraph test, police line up, first medical
certificates) while favouring later expert evaluations of the victim
and blaming the parents for not having reacted sooner.
- Lastly,
the first applicant complained that the legal classification given to
the facts by the domestic courts contradicted the Convention
requirements and had only been made possible because there had been
no adequate legislation to deal with rape of boys at that time.
- The
Government contended that the authorities had had a difficult task in
establishing the facts of the case, given the conflicting statements
made by the victim, his family and the witnesses throughout the
proceedings. In their view, the investigation had been prompt,
thorough and rapid and the mere fact that a conviction had not been
secured did not render the investigation ineffective. They considered
that it had taken the victim’s family too long to react despite
the fact that there had been visible signs of abuse. That attitude
was, in their view, inexplicable, especially since the child had not
had any social problems before the incidents.
- The
Government also pointed out that the obligation imposed on the States
under the procedural head of Article 3 was not an obligation of
result but one of means.
- As
far as Article 8 is concerned, the Government contended that, in the
context of the case and given the way the applicants phrased their
complaint, it would be difficult to identify a negative or positive
obligation incumbent on the State.
2. The Court’s appreciation
(a) General principles
- The
Court reiterates that the obligation of the High Contracting Parties
under Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken
together with Article 3, requires States to take measures designed to
ensure that individuals within their jurisdiction are not subjected
to ill-treatment, including ill-treatment administered by private
individuals (see M.C. v. Bulgaria, no. 39272/98, §
149, ECHR 2003 XII).
- Furthermore,
the absence of any direct State responsibility for acts of violence
that meet the condition of severity such as to engage Article 3 of
the Convention does not absolve the State from all obligations under
this provision. In such cases, Article 3 requires that the
authorities conduct an effective official investigation into the
alleged ill-treatment even if such treatment has been inflicted by
private individuals (see M.C., cited above, § 151,
and Denis Vasilyev v. Russia, no. 32704/04, §§
98-99, 17 December 2009).
- Even
though the scope of the State’s positive obligations might
differ between cases where treatment contrary to Article 3 has been
inflicted through the involvement of State agents and cases where
violence is inflicted by private individuals, the requirements as to
an official investigation are similar. For the investigation to be
regarded as “effective”, it should in principle be
capable of leading to the establishment of the facts of the case and
to the identification and punishment of those responsible. This is
not an obligation of result, but one of means. The authorities must
have taken the reasonable steps available to them to secure the
evidence concerning the incident, including, inter alia,
eyewitness testimony, forensic evidence, and so on. Any deficiency in
the investigation which undermines its ability to establish the cause
of injuries or the identity of the persons responsible will risk
falling foul of this standard, and a requirement of promptness and
reasonable expedition is implicit in this context. In cases under
Articles 2 and 3 of the Convention where the effectiveness of
the official investigation has been at issue, the Court has often
assessed whether the authorities reacted promptly to the complaints
at the relevant time. Consideration has been given to the opening of
investigations, delays in taking statements and to the length of time
taken for the initial investigation (see Denis Vasilyev, cited
above, § 100 with further references; and Stoica v. Romania,
no. 42722/02, § 67, 4 March 2008).
- Furthermore,
positive obligations on the State are inherent in the right to
effective respect for private life under Article 8; these obligations
may involve the adoption of measures even in the sphere of the
relations of individuals between themselves. While the choice of the
means to secure compliance with Article 8 in the sphere of protection
against acts of individuals is in principle within the State’s
margin of appreciation, effective deterrence against serious acts
such as rape, where fundamental values and essential aspects of
private life are at stake, requires efficient criminal-law
provisions. Children and other vulnerable individuals, in particular,
are entitled to effective protection (see M.C., cited above, §
150).
- The
Court reiterates that it has not excluded the possibility that the
State’s positive obligation under Article 8 to safeguard the
individual’s physical integrity may extend to questions
relating to the effectiveness of a criminal investigation (see M.C.,
cited above, § 152).
Lastly,
the Court notes that the United Nations Committee on the Rights of
the Child has emphasised that a series of
measures must be put in place so as to protect children from
all forms of violence which includes prevention, redress and
reparation (see paragraphs 52 53 above).
(b) Application of those principles to the
case under examination
- On
the facts of the case, the Court notes at the outset that the acts of
violence suffered by the first applicant and not contested by the
Government undoubtedly meet the threshold of Article 3. The State’s
positive obligations were thus called into action.
- The
Court notes with concern that despite the gravity of the allegations
and the particular vulnerability of the victim, the investigations
did not start promptly. Indeed, it took the authorities three weeks
from the date the complaint had been lodged, to order the medical
examination of the victim and almost two months to question the main
suspect. The investigation took five years and the applicants’
repeated complaints about its length were unsuccessful. The County
Court acknowledged the significant lapse of time, but drew no
inference from it.
Furthermore,
the Court notes that for almost three years no significant
investigative steps were taken after the prosecutor’s first
decision not to prosecute (16 June 2000), despite the repeated
hierarchical instructions to continue the investigations.
- At the end of the criminal proceedings, some seven
years after the date of the alleged facts, the accused person was
exonerated. Nothing in the file indicates that the authorities tried
to find out if somebody else could be held criminally responsible for
these serious crimes. This raises doubts as to the effectiveness of
the proceedings, in particular in such a sensitive case as that
involving the violent sexual abuse of a minor (see, mutatis
mutandis, Stoica, cited above, § 77).
- The
Court has found no indication of arbitrariness in the way the courts
classified the facts in law. Indeed, in application of the principle
of the more lenient criminal law, the rape of male juveniles was not
criminally punishable at the time, as males were not recognised as
potential victims of rape until 15 November 2000 and as in 2001
Article 200, which prohibited sexual intercourse with a person of the
same sex, including through coercion, was abolished (see paragraphs
49 and 50 above). Before the scope of the protection against rape was
extended to potential male victims, the system allowed
nevertheless for those acts to be reprimanded in the context of other
crimes, such as the ones invoked in the case under examination.
The
Court notes that the respondent State’s legislation currently
protects all persons, including male and female juveniles, against
rape, including statutory rape. It also notes that Romania has
ratified the CRC and the Convention on the Protection of
Children against Sexual Exploitation and Sexual Abuse (see paragraphs
51-54 above) which provide obligations for the Member States to
protect children against any form of abuse.
- As
for the proceedings in the case at hand, the Court reiterates that it
is not concerned with allegations of errors or isolated omissions in
the investigation; that it cannot replace the domestic authorities in
the assessment of the facts of the case; and that it cannot decide on
the alleged perpetrators’ criminal responsibility (see M.C.,
cited above, § 168). In similar cases, the Court has
expressed the opinion that it was for the authorities to explore all
the facts and decide on the basis of an assessment of all the
surrounding circumstances (see M.C., cited above, § 181).
- Notwithstanding
its subsidiary role in the matter, the Court is particularly
concerned that the authorities did not try to weigh up the
conflicting evidence and made no consistent efforts to establish the
facts by engaging in a context-sensitive assessment (see M.C.,
cited above, § 177). The Court emphasises that
investigation has to be rigorous and child sensitive in case
involving violence against a minor.
- The
Court cannot but note that while the authorities adopted a lax
attitude concerning the length of the investigation, the domestic
courts attached significant weight to the fact that the family did
not report the alleged crimes immediately to the police and that, to
a certain extent, the victim did not react sooner (see paragraph 47
above).
- The
Government also evoked the parents’ alleged negligence in
spotting and reporting the abuse in good time. Even if - with
hindsight - it might have been advisable for the parents to take
prompt action when they noticed the first changes in the behaviour of
the first applicant and the blood in his underpants, the Court fails
to see how this could have had a major impact on the diligence
of the police in their response to the reported facts. Neither
can the Court understand why the domestic courts have attached such a
significant weight to that fact.
- Concerning
notably the weight attached to the victim’s reaction, the Court
considers that the authorities were not mindful of the particular
vulnerability of young people and the special psychological factors
involved in cases concerning violent sexual abuse of minors,
particularities which could have explained the victim’s
hesitations both in reporting the abuse and in his descriptions of
the facts (see M.C., cited above, § 183).
- The
Court points out that the obligations incurred by the State under
Articles 3 and 8 of the Convention in cases such as this require that
the best interests of the child be respected. The right to human
dignity and psychological integrity requires particular attention
where a child is the victim of violence (see, mutatis mutandis,
Pretty v. the United Kingdom, no. 2346/02, § 65,
ECHR 2002 III). The Court regrets that the first applicant was
never offered counselling and was not accompanied by a qualified
psychologist during the proceedings or afterwards. The only mention
of such support is from the school counsellor, who suggested that it
would be better if the family moved away. Bearing in mind the
positive obligations that the Respondent State has assumed under the
various international instruments protecting the rights of child,
this cannot be considered to constitute an adequate measure for
“recovery and reintegration”.
- The
failure to adequately respond to the allegations of child abuse in
this case raises doubts as to the effectiveness of the system put in
place by the State in accordance with its international obligations
and leaves the criminal proceedings in the case devoid of meaning.
The
foregoing considerations are sufficient to enable the Court to
conclude that the authorities failed to meet their positive
obligations to conduct an effective investigation into the
allegations of violent sexual abuse and to ensure adequate protection
of the first applicant’s private and family life.
There
has accordingly been a violation of Articles 3 and 8 of the
Convention in respect of the first applicant.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
first applicant complained about the length and outcome of the
investigation and of the criminal proceedings. He relied on Article 6
of the Convention.
- Both
parties presented observations on the matter.
- Having
regard to the finding relating to Articles 3 and 8 (see paragraph 70
above), the Court considers that this complaint is admissible, but
that it is not necessary to examine whether, in this case, there has
been a violation of Article 6 (see, among other authorities, Bota
v. Romania, no. 16382/03, § 59, 4 November 2008).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the first applicant complained, under Article 2 of the Convention,
that P.E. had threatened to kill him if he told anyone about the
abuse and under Article 5 of the Convention that P.E. had deprived
him of his liberty.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 1,000,000 euros (EUR) in
respect of non pecuniary damage suffered by the first applicant.
- The
Government argued that there was no causal link between the alleged
violation and the amount sought and that the applicants’ claims
were in any case exaggerated. Lastly, they suggested that a finding
of a violation would constitute just satisfaction in the case.
- The
Court acknowledges that the first applicant must have suffered
hardship and distress because of the ineffective investigation and
the interference with the normal course of his private and family
life. It therefore awards the first applicant EUR 15,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicants did not make a claim under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints raised by the first
applicant under Articles 3 and 8 concerning the alleged lack of
effectiveness of the investigation and its impact on his private and
family life and the complaint raised by him under Article 6
admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of
Articles 3 and 8 of the Convention;
- Holds that there is no need to examine the
complaint under Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, in respect of
non-pecuniary damage, within three months from the date
on which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 15,000 (fifteen thousand euros), plus
any tax that may be chargeable, to be converted into the Respondent
State’s national currency at the rate applicable at the date of
settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 20 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
