SECOND SECTION

Application no. 27920/08 D.P. against Lithuania lodged on 23 May 2008

STATEMENT OF FACTS

The applicant, Ms D.P. , is a Lithuanian national, who was born in 1961 and lives in Kaunas. She is represented before the Court by Mr M. Polikauskas , a lawyer practising in KlaipÄ—da .

A. The circumstances of the case

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

In 1989 the applicant married A.P. They divorced in 2001. They had four children – a son, R.P., born in 1988, and three daughters, E.P., born in 1990, K.P., born in 1992, and I.P., born in 2000.

1. Criminal proceedings for violence experienced by the applicant and her three children

On 27 May and 31 August 1999 and 3 January 2001, the applicant addressed the Kaunas City District Court by way of a private prosecution. She asked that A.P., her husband at that time, be brought to justice for intentional and systematic beatings inflicted on her and their children R.P., E.P. and K.P., under Article 116 § 3 of the old Criminal Code (see Relevant domestic law, below). The applicant wrote that she had already contacted the Kaunas police a number of times; the police officers would warn A.P. but that did not improve the situation. When addressing the court, the applicant indicated the exact time when each act of violence had taken place and the type of beatings sustained. She also indicated, with reference to medical reports, what particular injuries she and each of the three children had sustained on each attack.

By a ruling of 5 January 2001, the Kaunas City District Court decided to transfer the material to a prosecutor, so that the latter could decide whether to start a pre-trial criminal investigation of his own motion ( iškelti baudžiamąją bylą bendra tvarka ). For the court, the applicant ’ s complaints were not specific enough.

On 19 March 2001, the Kaunas city police investigator opened criminal proceedings in respect of A.P. on the suspicion that he had systematically beaten the applicant and their three min or children R.P., E.P. and K.P.

In May 2001 A.P. was charged with systematic violence, in accordance with Article 116 § 3 of the old Criminal Code.

Between May 2001 and April 2002, the investigation was suspended twice, for a period of eight moths in total, because A.P. could not be located.

The police investigator established that from 10 August 1995 to 23 March 2003, A.P. had beaten the applicant ten times, in the presence of their children. Within that time-frame he had also beaten his minor children: R.P. four times (three times in the presence of his sisters), E.P. four times, and K.P. once. All the victims had sustained light health impairment.

In May 2002 the police investigator approved the bill of indictment on the charges of light health impairment and systematic physical violence, under Articles 116 § 3 and 117 of the old Criminal Code.

On 18 November 2002 and in administrative proceedings before a court, A.P. was given a warning for abusing his paternal rights. The court noted that A.P. would shout at his children and threaten them; the children were afraid of him.

By a judgment of 11 April 2003, the Kaunas City District Court found A.P. guilty of having systematically beaten the applicant, R.P., E.P. and K.P., which corresponded to the criminal offences specified in Articles 116 § 3 and 117 § 1 of the old Criminal Code. The applicant and each of the three children testified in court. The applicant noted that even though A.P. no longer lived with them, he kept keys for their apartment and would come and go as he pleased. According to the children, A.P. would hit and kick them and their mother, hit their mother ’ s head on the kitchen sink and twist her hands, tell R.P. that he was not A.P. ’ s son and kick him in the stomach, eat the children ’ s food and wake them up at night for no reason. Often, A.P. was drunk for weeks. The conviction was also based on witness testimony. Medical reports confirmed the injuries as well as the fact that at that time R.P. was already suffering from depression of medium severity. The court noted that when talking about his father R.P. could not keep tears from flowing. K.P. also showed emotional instability; she would urinate in bed at night.

That being so, the district court found that it was A.P. ’ s first conviction and that, according to the domestic law, the crimes he had committed were not serious ( nepriskiriami prie sunkių nusikaltimų ). The court sentenced the applicant to two years of deprivation of liberty, but considered that the aim of punishment could be achieved by deferring the execution of the sentence for two years.

On 10 June 2003 and on the basis of an appeal by A.P., the Kaunas Regional Court quashed the above judgment and returned the case to the trial court for a fresh examination.

By a judgment of 27 January 2004, the Kaunas City District Court found A.P. guilty of causing light health impairment (Article 140 § 1 of the New Criminal Code) to the applicant from 10 August 1995 to 10 December 2000. As regards physical violence in respect of the three children, the court held that the applicant ’ s guilt had been proved by their and the applicant ’ s coherent and reasoned testimony, witness testimony and medical reports. However, in respect of violence against the children that had taken place on nine occasions, the district court discontinued the criminal proceedings as time-barred. In addition, whilst sentencing A.P. to two years of deprivation of liberty, the court considered that the crimes committed by the applicant were not serious enough and that the punishment could be achieved without it being necessary to put A.P. in prison.

The applicant appealed in her own name and on behalf of the three children. In addition to disputing the decision to apply the statute of limitations, she maintained that the trial court had refused her request to order a psychological examination of her children, even though she had argued that because of physical and psychological trauma the children had developed stress and psychological disorder.

On 30 March 2004 the Kaunas Regional Court returned the case for a fresh examination. It held that the trial court ’ s reasoning as to the statute of limitations had been “incomprehensible“ and “full of statements that only the judge who took that decision could understand”. Moreover, the trial court had dismissed the applicant ’ s request for psychological examination of her three children without giving any reasons.

In a letter of 19 October 2004, R.P. wrote to the Kaunas City District Court that he would not be able to take part in the court hearings in future. He noted that his mother (the applicant) and the lawyer for her and the other children would represent R.P. ’ s interests. He stated that “he did not want to recall the events about which he had already testified in court many times, because this had a negative effect upon his health”.

On 20 October 2004, the Kaunas City District Court ordered a psychological evaluation of R.P., E.P. and K.P. The psychiatrists found that because of their father ’ s behaviour from 10 August 1995 to 23 March 2002, they had developed depression and post-traumatic stress. They feared their father. At that time R.P. testified that his conflict with his father had continued for many years; his father would curse him, wake him up when he was sleeping, and push him around; R.P. had no hope that his father would change. The boy had already tried to cut his wrists; he did not remember any good moments with his father.

In reply to a request by the Kaunas City District Court, the Kaunas Central Policlinic wrote, on 11 May 2004, that R.P. had attended the psychological health centre at that institution since 1999. He was diagnosed with post-traumatic stress disorder and depression of medium severity. He had been treated with antidepressants on a constant basis.

By a ruling of 9 March 2006 and on a request by a prosecutor, the Kaunas City District Court re-qualified the charges in respect of A.P., for having beating three of his children, from Article 116 § 3 of the Old Criminal Code to Article 138 § 2 (1, 3, 5) of the new Criminal Code.

By a ruling of 28 April 2006, the Kaunas City First District Court ordered a new psychological examination of R.P., E.P. and K.P.

Having examined the children, in a report of 15 December 2006 (no. EKG 46/06(02)) the psychiatrists concluded that because of their father ’ s physical and psychological violence, R.P. and K.P. had developed post-traumatic stress disorder; E.P. had developed a continuous depressive reaction. The doctors also noted that “criminal proceedings which had been pending since 1999 had an influence on the mental state of R.P., K.P. and E.P.” The doctors deemed, however, that the psychological suffering was “of a temporary nature” and qualified it as “light health impairment”.

By a judgment of 23 February 2007, the Kaunas City District Court discontinued the criminal proceedings because the prosecution under Article 138 § 2 (1, 3, 5) of the Criminal Code had become time-barred. The court also considered that on 19 March 2001 the criminal case had been opened in breach of procedural rules, given that it was a police investigator who had started the criminal proceedings. For the court, it was only a court or a prosecutor who had competence to start a criminal case on the basis of a private prosecution. It followed that the pre-trial investigation had been conducted without having opened criminal proceedings, which resulted in an essential breach of criminal procedure. That being so, the court was barred from adopting an accusatory judgment.

The applicant appealed against the decision, arguing that A.P. ’ s violence in respect of her three children had been continuous and that it was unfair to discontinue the criminal proceedings. She also noted that the last episode of A.P. ’ s violence had taken place as recently as 30 September 2006 [R.P. ’ s attempted suicide, see below] and that the Kaunas police were still investigating the matter.

By a letter of 23 April 2007 and in reply to a request by the applicant, the prosecutors confirmed that the Kaunas city police had been conducting a pre-trial investigation for inciting suicide (Article 133 of the Criminal Code) and failure to comply with a court decision (see below). The investigations were pending.

On 24 April 2007, the Kaunas Regional Court discontinued the criminal proceedings in respect of A.P. on the charges of light health impairment, under Article 138 § 2 (1, 3, 5) of the new Criminal Code. The court found that the prosecution had become time-barred on 23 March 2007.

The applicant ’ s civil action for damages was left unexamined.

The applicant, in her own name and as legal representative of her two minor daughters E.P. and K.P., as well as her son R.P., lodged an appeal on points of law. They argued that by applying the statutory limitation to the prosecution of A.P. the appellate court had misinterpreted the rules of criminal procedure. They emphasised that criminal investigations on the charges of inciting suicide and failure to comply with a court decision were still pending. Taking into account that the latter criminal acts had been committed before the statutory limitation to prosecute for the criminal acts perpetrated in 1995-2003 expired, the applicant and R.P. considered that the statutory limitation could not be applied. The applicant asked that the case be returned to the appellate court for a fresh examination.

By a final ruling of 27 November 2007, the Supreme Court upheld the lower court ’ s reasoning to discontinue the criminal proceedings as time ‑ barred. It noted that the case-file did not contain information about new pre-trial investigations on the charges under Articles 133 and 245 of the Criminal Code. Nonetheless, such circumstance could [later] be a ground to reopen criminal proceedings on the initial charges.

The prosecutor was present at the hearing and asked the court that the applicant ’ s and R.P. ’ s appeal on points of law be dismissed. She noted that “there were plenty of violations of criminal procedure in the current case but they are of no consequence, because the prosecution became time-barred”.

2. Criminal proceedings in respect of A.P. for inciting his son ’ s suicide

By a letter of 20 January 2007 the applicant wrote to the Kaunas city police that her former husband had ignored the court ruling of 3 February 2003, by which a civil court had barred him from contacting their children. She argued that A.P. would terrorise the children by making telephone calls and insulting them, stalking the children near their home, or by sending his friends [to talk to his children]. The applicant noted that such behaviour by A.P. caused their children a lot of emotional suffering. As to R.P., he was so depressed that on 30 September and 19 December 2006 he had tried to take his own life. As a consequence, R.P. had been taken to and treated in a psychiatric hospital. The applicant asked the police investigators to charge A.P. with inciting their son ’ s suicide.

In March 2007 the Kaunas city prosecutors opened a pre-trial investigation on the criminal charge that on 30 September 2007 the applicant ’ s son R.P. had attempted to kill himself because of his father ’ s actions. R.P. testified that on that day, which was his birthday, he had cut his veins because his father had called him and insulted him. R.P. again tried to take on his life on 6 December 2006 by drinking alcohol with medication.

On 27 December 2007 the Kaunas City Prosecutor ’ s office discontinued the criminal case against A.P. for inciting his son ’ s suicide. The court noted that his father had been violent and abusive towards R.P. Nonetheless, the reason behind R.P. ’ s attempted suicide could also have been his complicated and depressive character which did not allow him to adapt well at school.

The decision could be appealed against to a higher court. The applicant writes that her son did not appeal against the decision because of his ill ‑ health.

3. Criminal proceedings for failure to comply with the court ’ s decision

On a request for interim measures by the applicant, by a ruling of 3 February 2003 a civil court barred A.P. from contacting his children and coming to their place of residence.

On an unspecified date the applicant initiated court proceedings, arguing that in December 2004 and on 31 March 2006 A.P. had come to the yard of their home and been conflictual there.

By a ruling of 24 April 2008 the Kaunas City District Court discontinued the criminal proceedings as time-barred, because there was a time-limit of two years to prosecute such a crime.

4. Civil proceedings to restrict A.P. ’ s parental authority

On 29 May 2004 the applicant addressed a civil court with a request that A.P. ’ s parental rights be restricted as regards their daughters E.P., K.P. and I.P. (at that time their son R.P. was no longer a minor). She argued that A.P. was systematically violent towards his children; three of them had been injured physically and mentally; moreover, R.P. had twice attempted to take his own life.

By a decision of 29 January 2008, the Kaunas City District Court granted the request, barring A.P. from contacting his daughters E.P., K.P. and I.P., this being in the interest of the children. It noted that the applicant ’ s complaints about her former husband ’ s violent behaviour had been examined and confirmed by police officers. A.P. had been charged in administrative and criminal proceedings with having deliberately beaten three of their children. Medical reports confirmed the injuries. The relationship between the children and their father was very tense; the children were afraid of him. When testifying in criminal proceedings and in the civil case each of the three daughters stated that their father hated them, he was violent and they were afraid of him. In their opinion, A.P. had tried to destroy the family. When questioned in criminal proceedings on an earlier date, R.P. testified that his father was systematically beating and insulting him; after the beatings his mother would take him to medical experts for check-ups. The court also took into account the psychiatrists ’ reports commissioned in 2004 in the criminal proceedings (see above).

By a ruling of 17 June 2008, the Kaunas Regional Court upheld the above decision. Apart from the evidence that had already been examined by the lower court, the appellate court paid particular attention to the evidence provided by the child care authorities which had warned A.P. about abusing his parental rights already in 2002. On that point the court noted that A.P. not only lacked skills as a father, but he was conflictual and abusive. He would insult the children, threaten them with starvation or to throw them out of the house. For the court, the most explanatory evidence was that by R.P., “to whom his father ’ s behaviour had almost cost him his life”.

By a ruling of 10 November 2008, the Supreme Court dismissed A.P. ’ s appeal on points of law. That decision was final.

5. Further developments

On 12 October 2009 the applicant ’ s son R.P. took his own life. He was 21 years of age.

B. Relevant domestic law

Article 116 § 1 of the old Criminal Code (in force until 30 April 2003), provided for criminal liability for causing intentional light health impairment; paragraph 3 of that provision provided for criminal liability if the crime was systematic, punishable by deprivation of liberty of up to three years.

Article 117 established criminal liability for intentional physical violence or torture. Should such actions be systematic, they were punishable by deprivation of liberty of up to one year.

Article 140 § 1 of the Criminal Code, in force from 1 May 2003 (“the new Criminal Code”), establishes criminal liability for causing light health impairment. The crime is punishable by community service or deprivation of liberty for up to one year. Before 1 May 2003, the offence came under Article 116 § 1 of the “old Criminal Code”. It is considered to be a minor ( nesunkus ) crime.

Article 95 § 1 of the Code of Criminal Procedure provides that an accusatory judgment may not be adopted if the minor intentional crime was committed more than five years previously.

The New Criminal Code also provides:

Article 133. Abetting Suicide or Inciting Suicide

“A person who abets a person to commit a suicide or incites the person ’ s suicide by a cruel or deceitful conduct shall be punished by a restriction of liberty or by arrest or by imprisonment for a term of up to four years.”

Article 138. Non-Severe Health Impairment

“1. A person who causes bodily harm or illness to a person resulting in the victim ’ s loss of a small part of his professional or general capacity for work or in a long-lasting illness, but without developing the after-effects indicated in paragraph 1 of Article 135 [severe health impairment] of this Code shall be punished by a restriction of liberty or by arrest or by imprisonment for a term of up to three years.

2. A person who causes bodily harm or illness which is not serious

1) to a young child;

( ... )

3) to his close relative or family member;

( ... )

5) to two or more persons ( ... )

shall be punished by imprisonment for a term of up to five years. ”

Article 140. Causing Physical Pain or a Negligible Health Impairment

“1. A person who, by beating or other violent actions, causes to a person physical pain or a negligible bodily harm or a short-term illness shall be punished by community service or by restriction of liberty or by arrest or by imprisonment for a term of up to one year.”

A person who fails to comply with a court ’ s decision not associated with a penalty shall be considered to have committed a misdemeanour and may be punished by community service or by a fine or by restriction of liberty or by arrest (Article 245 of the New Criminal Code).

The Civil Code provides:

Article 3.180. Conditions, methods and consequences of the restriction of parental authority

“1. Where the parents (the father or the mother) fail in their duties to bring up their children or abuse their parental authority or treat their children cruelly or produce a harmful effect on their children by their immoral behaviour or do not care for their children, the court may make a judgment for a temporary or unlimited restriction of parental power (that of the father or the mother).

2. The court shall make decisions for temporary or unlimited indefinite restriction of parental authority (that of the father or the mother) by having regard to the circumstances of the case that require a restriction of parental authority. Parental authority may be restricted unlimitedly only where the court makes the conclusion that the parents (the father or the mother) do very great harm to the development of the child or do not care for the child and no change in the situation is forthcoming ( ... )”

COMPLAINTS

Relying on Article 6 § 1 of the Convention the applicant complains that the criminal proceedings in respect of her former husband A.P. were protracted and the case was not examined within a reasonable time. As a result, the prosecution became time-barred and her former husband did not receive appropriate punishment by a court. She and her children felt powerless and were disappointed in the law-enforcement system in Lithuania .

By a letter of 26 October 2009 the applicant informed the Court that her son R.P. had killed himself two weeks before. She submits that this would not have happened had the law-enforcement institutions not procrastinated in the criminal proceedings. She states that for eight years the children had been summoned to court hearings on a nearly monthly basis, even though they had already been questioned at the pre-trial investigation stage. Accordingly, “the children grew up in the courtroom”. Failure to obtain justice affected her children even more, besides the [physical and mental] violence they had been exposed to by their father.

QUESTIONS TO THE PARTIES

1. Did the treatment to which the applicant was subjected by A.P. attain the minimum level of severity to fall within the scope of Article 3 of the Convention (see Beganović v. Croatia , no. 46423/06 , §§ 64-66 and 68, 25 June 2009 )?

2. If so, and having regard to the States ’ positive obligations under Article s 1 and 3 of the Convention, has the manner in which the criminal law mechanisms have been applied in the present case by the domestic authorities been in breach of Article 3 of the Convention (see A. v. the United Kingdom , 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI ; Beganović , cited above , §§ 69-71 ) ?

3. Alternatively, has there been a violation of the applicant ’ s right to respect for her private life under Article 8 of the Convention (see Sandra Janković v. Croatia , no. 38478/05, §§ 31, 44 and 45, 5 March 2009 )?