Information Note on the Court’s case-law 211

October 2017

D.M.D. v. Romania - 23022/13

Judgment 3.10.2017 [Section IV]

Article 3

Effective investigation

Excessive length of proceedings and other shortcomings in prosecution of domestic violence against minor child: violation

Article 6

Civil proceedings

Article 6-1

Access to court

Fair hearing

Refusal of domestic courts to award minor victim of domestic viol ence compensation in absence of a claim: violation

Facts – The applicant was born in 2001. In February 2004 his mother called a child protection authority to report that he was being abused by her husband, the boy’s father. Between March and July 2004 she also complained to the police on five occasions. After t he fifth complaint, the authorities launched a criminal investigation. The prosecuting authorities heard evidence from six witnesses and examined psychological reports, which led to the indictment of the applicant’s father in December 2007.

The case was th en examined at three levels of jurisdiction. The applicant’s father was initially acquitted after the domestic courts found that his “occasionally inappropriate behaviour” towards his son did not constitute a crime. However, following a number of remittals of the case owing to shortcomings in the lower courts’ decisions, the County Court ultimately convicted the father in April 2012 of physically and verbally abusing his child after finding that his behaviour was more severe than the type of “isolated or ra ndom” violence that could occur when parents were simply punishing their children.

The proceedings eventually ended in November 2012 following an appeal on points of law by both parties. The Court of Appeal reaffirmed that the father had abused his child a nd gave him a suspended prison sentence whose length was reduced in order to take into account the excessive length of the proceedings. The applicant and the prosecutor complained that no compensation had been awarded. However, the Court of Appeal ruled th at it did not have to examine the issue of damages as neither the applicant nor the prosecutor had requested compensation before the lower courts.

Law – Article 3 ( procedural aspect ): The Court reiterated that the States should strive to expressly and comp rehensively protect children’s dignity. That, in turn, required in practice an adequate legal framework affording protection to children against domestic violence, including (a) effective deterrence against such serious breaches of personal integrity, (b) reasonable steps to prevent ill-treatment of which the authorities have, or ought to have, knowledge, and (c) effective official investigations where an individual raises an arguable claim of ill-treatment.

The essential purpose pursued by the investigatio n into the allegations of abuse in the applicant’s case could be considered to have been achieved as the person responsible for the abuse (the father) was ultimately convicted and sentenced to a term of imprisonment. However, despite this, the investigatio n had to be regarded as ineffective because it had lasted too long and been marred by serious shortcomings.

(a) Length of the investigation – The authorities had first become aware of the applicant’s situation in February 2004, when his mother called the child protection authority to report abuse. There was however no indication that anything concrete was done to verify that information, to t ransmit it to the police or to protect the victims. No action was taken by the authorities in respect of the first four criminal complaints lodged by the mother against the father from March to June 2004. When the investigation did eventually start in July 2004, it lasted for almost three years and six months. Overall, owing to significant periods of inactivity on the part of the investigators and the Forensic Medicine Institute and a series of quashed decisions following omissions of the lower courts, the proceedings lasted eight years and four months at three levels of jurisdiction. That period was excessive.

(b) Shortcomings – Several shortcomings were apparent in the proceedings: (i) unlike his father, who received a reduction of sentence, the applicant was not offered any form of compensation for the extensive length of the case; (ii) the applicant received no compensation for the abuse to which he had been subjected; (iii) the domestic courts’ approach to the issue of domestic abuse, which appeared to suggest that “isolated and random” acts of violence could be tolerated within the family, was not compatible with either domestic law or the Convention, both of which prohibited ill-treatment, including corporal punishment. Indeed, any form of justificatio n for ill-treating a child, including corporal punishment, undermined respect for children’s dignity.

For these reasons, bearing in mind what was at stake for the applicant in the proceedings, the length and pace of the proceedings, and the difference in treatment between the applicant and the perpetrator in respect of that length, as well as the manner in which the courts had dealt with the issue of domestic abuse, the Court concluded that the investigation into the allegations of ill-treatment was ineffe ctive.

Conclusion : violation (unanimously).

Article 6 § 1 ( fair trial ): The Court noted that according to the applicable law (Article 17 of the Code of Criminal Procedure) the domestic courts were under an obligation to rule on the matter of compensation in cases where the victim was a minor and therefore had no legal capacity, even without a formal request from the victim. Both the courts and the prosecutor had to actively seek information from the victim about the extent of the damage incurred. The law t hus afforded reinforced protection to vulnerable persons, such as the applicant, by placing an extended responsibility on the authorities to take an active role in this respect. For this reason and in the light of the object of the investigation the procee dings went beyond mere litigation between private individuals and thus engaged the State’s responsibility under Article 6 § 1 of the Convention

Given such unequivocal wording in the domestic law, the Court of Appeal should have examined on the merits the a pplicant’s complaint about the failure to award him compensation. Instead, it had simply observed that neither the applicant nor the prosecutor had requested compensation before the lower courts and thus failed to examine the role of the domestic courts or of the prosecutor in securing the applicant’s best interests. That had amounted to a denial of justice, in violation of Article 6 § 1.

Conclusion : violation (four votes to three).

The Court also held unanimously that, in view of its finding of a procedur al breach of Article 3, there was no need to give a separate ruling on the applicant’s length-of-proceedings complaint under Article 6 § 1.

Article 41: EUR 10,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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