Communicated on 25 March 2014

THIRD SECTION

Application no. 23022/13 D.M.D . against Romania lodged on 22 March 2013

STATEMENT OF FACTS

1 . The applicant, Mr D. M. D., is a Romanian national, who was born in 2001 and lives in Bucharest. He is repres ented before the Court by Ms C.I. , his mother.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . C.I. and D.D. are the applicant ’ s parents. They got married in 1992 but divorced in September 2004. Soon after the applicant ’ s birth the relations between the parents started deteriorating as D.D. could not stand the baby ’ s cries and did not want to support the additional costs required for the upbringing of the new-born. About six month after the applicant ’ s birth, D.D. became abusive towards his son. As the mother tried to reason him or intervene to protect the child, the couple got into violent fights.

4 . D.D. demanded that his son be sent to the maternal grandmother, because the baby was too noisy and it cost too much to support him. The wife opposed her husband ’ s requests and kept the child with her.

5 . When the baby was crying, D.D. took the habit of throwing him on the bed. He screamed at the child and spat at him and shouted abuse to make him shut up. He punished him by throwing his toys in the bin or by crushing his favourite ones with his feet in front of the child. He also locked the child in a small room without lights and used to remove all the light-bulbs in the house when leaving for work, as a punishment, knowing that the child was afraid of dark. He threw cold water on the applicant and hi s mother when they were asleep.

6 . The child regularly cried and screamed until he sometimes lost consciousness and his mother ’ s attempts to calm him down or to protect him made D.D. physically and verbally abusive towards her as well.

7 . D.D. refused to participate in the maintenance costs, ate the food prepared fo r the child and drank his milk.

8 . On 27 February 2004 C.I. called the hotline of the Bucharest Child Protection Agency ( Direcţia Generală de Asistenţă Socială şi Protecţia Copilului ) to report the abuse. Since then, the case ha s been monitored by the Agency.

9 . In April 2004, during an episode of aggressiveness towards the applicant, C.I. fled home with the child and took shelter with a relative. On 30 April 2004 a medical certificate established that the applicant suffered from reactive attachment disorder ( tulburări emoţionale reactive ). The psychiatrist recommended that the child be protected from any traumatising situations and that he receive psychotherapy.

1. Psychological assistance of the applicant

10 . From 3 May 2004 C.I. and the applicant lived in shelters for victims of domestic violence. In February 2005 they had to change shelter because D.D. had managed to find them and came repeatedly to shout and to try take the applicant with him. Witnesses in the criminal trial against D.D. declared having heard him threatening C.I. “I will have that little bastard, and you will see that once I take your child away you will be willing to sign even your own death sentence ... ” ( Lasă că pun eu mâna pe secătura aia mică şi ai să vezi tu după ce îţi iau copilul , ai să semnezi şi condamnarea la moarte ... )”

11 . From June to July 2004 the applicant underwent a psychological evaluation in the shelter. The two psychologists observed that the applicant ’ s motor skills, intelligence and language skills were normally developed but that he had problems of social behaviour and emotional development. He was aggressive towards other children, preferred rough games and became aggressive and anxious when his father ’ s name was mentioned.

The psychologists recommended that the applicant be protected from any reiteration of the abuse and that D.D. be also evaluated and included in the counselling programme.

12 . The applicant was offered psychological counselling by the Child Protection Agency. An evaluation report of 24 May 2006 reiterated the child ’ s problems and concluded that there were numerous indications that he had suffered physical and emotional abuse.

13 . As his troubles manifested also through deterioration in language skills, the applicant was treated by a logopedist until 1 October 2007.

14 . According to the submissions made by his mother, the applicant continues to receive psychological counselling.

2. Criminal investigations against D.D. for domestic violence

15 . C.I. complained with the police about D.D. ’ s abusive behaviour both towards her and the applicant.

(a) Violence against C.I.

16 . On 18 November 2004 the Bucharest District Court imposed a criminal fine on D.D. for having physically and verbally aggressed C.I. on 25 February 2004. The court established, based on the evidence in the file, that D.D. had slapped his wife and had warned her that she would eventually leave the house on her own initiative out of fear of him. The court observed that the scene had taken place in front of the applicant who had become affected by his father ’ s behaviour. The court also established that further violence had occurred between the spouses and that on several occasions C.I. had had to take refuge in shelters fo r victims of domestic violence.

(b) Violence against the applicant

17 . C.I. complained with the police about the violence inflicted by her husband on their son. Several such criminal complaints, lodged on 5 March, 16 April, 7 May and 30 June 2004, went unanswered.

18 . On 1 July 2004 she lodged a new criminal complaint with the Bucharest Police which lead to the opening of a n investigation concerning D.D.

19 . On 1 November 2005 the prosecutor ’ s office attached to the Bucharest District Court (“the prosecutor”) started criminal pursuits against D.D. It heard C.I., D.D. and witnesses and examined the expert reports concerning the applicant ’ s and D.D. ’ s psychological evaluations. It concluded that the applicant had suffered trauma in his early childhood because of his father ’ s behaviour, but that once he was removed from his father ’ s presence his state had started to improve due to counselling. It also observed that D.D. tried to dissimulate the truth during the prosecution. The prosecutor also observed that D.D. had made several requests for contacts with the applicant. However, the prosecutor concluded that they were only attempts to hide his previous abusive behaviour. The evidence gathered indicated that D.D. had not wanted the child around him and that when they had been together he had done everything he could to torment the child and to make him suffer. The prosecutor also noted that D.D. admitted having committed some of the acts reproached to him, but denied having i nflicted any pain on his child.

20 . On 27 December 2007 the prosecutor indicted D.D. for abu sive behaviour towards his son.

21 . The Bucharest District Court heard evidence from a psychologist who had observed the applicant during therapy, as well as from witnesses, C.I. and D.D. who denied having hurt his son. It considered that given the applicant ’ s young age, a psychological expert examination at the Mina Minovici National Institute for Forensic Medicine (“the Forensic Medicine Institute”) was not relevant to the case. 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 ground that his occasionally inappropriate behaviour towards the applicant had not been severe enough to constitute a crime.

22 . On 19 February 2009 the Bucharest County Court upheld that decision and the reasoning given by the district court.

23 . In a final decision of 19 June 2009 the Bucharest Court of Appeal quashed the previous decision and sent the case back to the county court. It indicated notably that the court should hear evidence from the applicant and should not ignore the psychological reports concerning him.

24 . On 14 July 2009 the case returned to the County Court which held its firs t hearing on 23 September 2009.

25 . On 14 December 2009 the County Court held a private hearing and interviewed the applicant. He reiterated how D.D. used to hit him, lock him in a small room without lights, throw water on him while he was sleeping or call him names. He stated that D.D. had been fighting often with his mother and sometimes had thrown out of their apartment the applicant ’ s maternal grandmother and aunt who were bringing food to the child. 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 punish ed for what he had done to him.

26 . In a decision rendered on 22 December 2009 the court convicted D.D. for ill-treatment inflicted on a minor and gave him a four years ’ suspended sentence. It considered that the evidence in the file, in particular the psychological reports and the testimony given by the psychologist, confirmed that the child had suffered trauma as a consequence of his father ’ s abusive behaviour.

The court also noted that C.I. did not request damages on behalf of the applicant. Based on the relevant provisions of the Code of Criminal Procedure, the court, on its own initiative, awarded the applicant 20,000 Romanian lei (RON) in respect of non ‑ pecuniary damage.

27 . D.D. appealed on points of law and in a final decision of 7 April 2010 the Bucharest Court of Appeal quashed the previous decision and sent the case back to the county court. It noted that the county court had failed to seek an opinion from the Forensic Medicine Institute. It considered that an expert evaluation was required in the case, as showed by the fact that the court had had to rely on medical reports in order to form its own opinion. The reports used by the court were nevertheless non-judicial and therefore should not have been relied on.

28 . The case arrived at the county court on 19 April 2011.

29 . On 27 April 2011 the court ordered an expert examination of the applicant to be carried out by t he Forensic Medicine Institute.

30 . On 25 November 2011 and 11 January 2012 the applicant, who was 10 years old at that time, underwent psychiatric evaluations performed by the experts from the Institute. The report was drafted on 30 January 2012 and reached the court on 3 February 2012. It revealed that the applicant showed fe elings of anxiety and uncertaint y towards the father. The experts confirmed the existence of physical and emotional abuse before the age of two, which had triggered the reactive attachment disorder. They noted that the child ’ s evolution had been positively influenced by the psychotherapy and by the healthy relation he had with his mother. The experts recommended that the applicant be protected from any situation involving reminiscence of the past abuse and urged that the judicial proceedings be finalised expeditiously. It warned that the applicant ’ s prolonged exposure to them was de trimental to his mental health.

31 . The court heard evidence from D.D. who denied having hurt his son.

32 . The defence lawyer and the prosecutor reiterated that their appeals only concerned the criminal branch of the district court ’ s decision.

33 . Based on the evidence in the file, notably the expert evaluations, psychologist ’ s testimony, witness statements, as well as the parents ’ and the applicant ’ s statements, the court considered it established that D.D. had physically and verbally abused his child from 2002 to 2004. D.D. was convicted of ill-treatment inflicted on a minor.

34 . When sentencing D.D., the court took into account that the criminal proceedings lasted too long and that there were significant periods of inactivity by the authorities involved, in particular by the investigators and the Forensic Medicine Institute. It therefore considered that an effective remedy for that situation would be to apply a lower sentence than that set by law. It thus gave D.D. a one year ’ s prison sentence. Considering the gravity of the facts perpetrated by D.D. against his own minor child, the court also withdrew his parental rights for three years. The court suspended the sentence and consequently the wit hdrawal of his parental rights.

35 . The decision was rendered on 26 April 2012.

36 . All parties appealed on points of law. The applicant and the prosecutor complained notably about the sentence and the absence of an awar d of damages for the applicant.

37 . The Bucharest Court of Appeal examined the parties ’ submissions based on the evidence in the file. It reaffirmed that D.D. had physically and verbally abused his child.

38 . As for the sentence, it considered that the reduction of sentence as a remedy for the length of the trial should not go below the limits established by law. It therefore increased the prison sentence to the legal minimum of three years and suspended it. The court established a trial period of eight years and imposed several obligations on D.D. during that time, notably not to contact the applicant.

39 . The court further considered that in so far as both the prosecutor and the applicant limited their appeals to the criminal aspects of the district court ’ s decision, the county court was right in not awarding damages on its own initiative.

40 . The court of appeal rendered its final decision on 1 November 2012 and rectified the text of the operative part on 22 November 2012.

B. Relevant domestic law

41 . Under Article 17 of the Code of Criminal Procedure as in force at the date of the relevant facts, if a victim of a crime lacked the full legal capacity to exercise his rights (as, for example, a minor) the court could examine the damage on its own initiative; it can award compensation even without a formal request by or on behalf of the victim.

42 . According to Article 116 of the same Code, when the court needs an expert opinion in order to resolve a case, an expert evaluation may be requested by the parties or by the court on its own initiative.

COMPLAINTS

43. The applicant complains under Article 3 of the Convention that the authorities (police, prosecutor and courts) failed to investigate promptly the allegations of ill-treatment inflicted on him, despite the evidence brought to them .

44. Under Article 6 of the Convention the applicant further complains about the length of the criminal proceedings against D.D. and about the failure of the courts to award him damages.

QUESTION S TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, concerning the award of damages?

2. Did the applicant have a fair hearing by a court in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention, with regard to the manner in which the courts examined his right to compensation?

3. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV; Denis Vasilyev v. Russia , no. 32704/04 , §§ 89-100, 17 December 2009; Z and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001 ‑ V and E. and Others v. the United Kingdom , no. 33218/96, 26 November 2002), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention, in particular having regard to the pace of the proceedings?