JOINT CONCURRING OPINION OF JUDGES DE GAETANO, PINTO DE ALBUQUERQUE AND MOTOC

1. We agree with all the eight operative provisions of the judgment. Nevertheless we are of the view that, in the light of the special features of the case, notably the fact that domestic violence was involved and the vulnerability of the applicant, some further emphasis is required as to the general principles applicable. We are particularly concerned with the lack of clarity of the Chamber judgment as to the scope of the prohibition of ill ‑ treatment of children and the nature of the denial of justice in the present case.

2. The applicant’s “Calvary” in the Romanian courts – there is no other word to describe what he must have gone through – lasted from July 2004 to November 2012. He was three years old when it started and more or less eleven when it finished. His entire childhood was dominated by the criminal proceedings. In our view any proceedings, civil or criminal, which directly involve minors, automatically attract not so much the special diligence requirement as the “exceptional diligence” requirement (see H. v. the United Kingdom , no. 9580/81, § 85), which should characterise such proceedings. In this case we agree that there is no need to examine the Article 6 complaint regarding the length of the proceedings only because the same fact is, as it were, absorbed in the more serious Article 3 violation, as described in paragraphs 43 to 53. There is here, in a sense, a formal or ideal concurrence of violations of the Convention, and this has been adequately catered for in the amount of non-pecuniary damage awarded.

3. According to the Bucharest Court of Appeal, since neither the prosecutor nor the applicant had based their appeals on civil aspects of the case, the County Court was right in limiting its examination of the case to the criminal issues brought before it. The argument invoked by that court is, in effect, based on the principle quantum apellatum, tantum devolutum , according to which the appellate court is obliged to confine itself to deciding the appeal within the boundaries of the grounds of appeal. By so arguing, the Court of Appeal chose to ignore Article 17 of the Code of Criminal Procedure obtaining at the relevant time, thereby also ignoring a cardinal principle of the administration of justice: in omnibus quidem, maxime tamen in jure, aequitas spectanda sit.

4. As a matter of law, Article 17 imposed a legal obligation on courts, including appellate courts, to examine the possibility of awarding damages on their own initiative, when the aggrieved party was, as in the present case, a person without legal capacity or with restricted legal capacity. In effect, it created an exception to the principle that it is for the victim to request damages, placing the obligation on the investigative authority and the court itself. The ex officio nature of this type of inquiry trumps the principle quantum apellatum, tantum devolutum. In such a scenario, one would expect that only an explicit waiver of such right to compensation by the victim would release the courts from their ex officio legal obligation to consider the issue of the damages. No such explicit waiver was ever put forward by the applicant or his representative. The fact that the applicant’s mother did not want to participate as a civil party ( constituire de parte civilă ) in the criminal proceedings (paragraph 9) – and not, as tendentiously stated by the Government (paragraph 60), that she did “not request moral damage” – cannot be read as a waiver on behalf of her minor son. In effect, the requirements imposed upon the courts by Article 17 were independent of any formal request to participate as a civil party as well as of any specific request for moral damages made by the legal representative of the person without legal capacity or with restricted legal capacity. Thus, the argument of the Government that the applicant had waived, through his representative, his right to compensation by limiting the appeal to the criminal aspects of the case, is wrong. In fact, the County Court itself accorded damages to the applicant of its own motion in its decision of 22 December 2009. More critically, there was a constant practice affirming the ex officio nature of the inquiry. Thus, in decision no. 1776/2005, the High Court of Cassation and Justice, relying precisely on the said Article 17, quashed a decision because the Court of Appeal, while convicting the husband for murdering his wife, had omitted to examine the question of damages for the victim’s minor children. In like vein, in case no. 254/1990, the Bucharest County Court dismissed, as running counter to the interests of the minor children, a waiver of the right to receive compensation made by their mother on their behalf. It is, therefore, quite surprising that in the instant case the same court decided not to award such damages, without giving any justification, in its decision of 26 April 2012. This arbitrary conduct of the County Court was reproached even by the prosecutor, who complained about the fact that the County Court had not awarded damages (see paragraph 17). Bearing in mind that the Bucharest Court of Appeal was called to remedy this conduct of the lower court and did not, the applicant was the victim of a serious denial of justice and thus of a violation of Article 6 of the Convention, which is not absorbed or consumed by the autonomous violation of Article 3.

5. In the light of the elements of international law cited in paragraphs 25 to 34 of the judgment, we consider that the Chamber should have stated, in more principled and clearer terms, that member States of the Council of Europe have a positive obligation under the European Convention on Human Rights to prohibit all forms of violence against children in all settings, and to effectively investigate, prosecute and punish those responsible for such violence: the expression “should strive”, as used in paragraph 51, does not adequately reflect this obligation as it exists today. This punishment should be sufficiently severe to act as a deterrent, as required by the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (see paragraph 27) and the United Nations Convention on the Rights of the Child (paragraph 32). Article 45 of the above mentioned Council of Europe Convention requires Parties to match their action with the seriousness of the offences; the parties are in fact required “to take the necessary legislative or other measures to ensure that the offences established in accordance with [the] Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness”. We note that D.D. was convicted of physical and verbal abuse against the applicant, covering a period of two years (from 2002 to 2004), and yet he was sentenced to a mere suspended prison term. Such a penalty would clearly not be in line with the above-mentioned international standards.

PARTLY CONCURRING OPINION OF JUDGE BOÅ NJAK

While I share the majority’s view that there has been a violation of the procedural limb of Article 3 of the Convention in the present case, I cannot subscribe to some of the reasons set out in the judgment. In my opinion, the circumstances described in paragraphs 42 to 44 of the judgment are in themselves sufficient to find the above violation. The competent authorities failed to take any action in respect of the first four criminal complaints lodged by the applicant’s mother. Once the authorities decided to react, it took them almost three and a half years to complete the investigation in a case of child abuse, and the proceedings as a whole lasted more than eight years for three levels of jurisdiction, with an intervening significant period of inactivity. The fact that the perpetrator was finally convicted and given a suspended sentence of one year’s imprisonment can hardly counterbalance the serious lack of diligence in conducting the case or lead to a conclusion that the investigation into allegations of ill-treatment of a vulnerable child was effective.

The majority, however, decided to outline additional reasons for finding a violation of the procedural limb of Article 3. These reasons are developed in paragraphs 47 to 51 of the judgment. According to their first argument, the authorities failed to offer any compensation to the applicant for the excessive length of the proceedings, while the perpetrator received a reduced sentence for that same reason. Yet one can hardly imagine any form of compensation for a victim within criminal proceedings for the excessive length of those same proceedings. Such compensation can possibly be sought and awarded in separate proceedings, but these have never been initiated by the applicant. I do not believe that Article 3 of the Convention, under its procedural limb, requires the High Contracting Parties to award damages for possible excessive length of criminal proceedings within those proceedings themselves.

Furthermore, the majority are of the opinion that the applicant should have received compensation for the abuse in order to counterbalance the excessive length of the proceedings and to comply with the standards of an effective investigation (see paragraph 48 of the judgment). The fact that the applicant did not receive compensation for the abuse is dealt with separately, under his Article 6 complaint, and it might not be considered fully appropriate to penalise the respondent State twice, under two different Convention provisions, for the same omission. Be that as it may, together with judges Yudkivska and Ranzoni, I have expressed my dissent with the majority’s view that the national courts in the present case were under a Convention obligation to award damages to the applicant in this respect. I believe that those arguments (especially the fact that the applicant’s mother, acting on his behalf, expressly waived any claim for damages) are also pertinent to the issue of a violation of Article 3.

Finally, after citing international documents in paragraph 50, the majority emphasise in paragraph 51 that respect for children’s dignity cannot be ensured if the domestic courts were to accept any form of justification for acts of ill-treatment, and that the Member States should strive to expressly and comprehensively protect children’s dignity by adopting an adequate legal framework. While one cannot but agree, it is hard to understand why these principles speak for finding a violation in the particular case. In particular, the domestic courts did in fact convict the perpetrator, thereby apparently finding no justification for his acts. On the legislative level, the respondent State has adopted The Protection and Promotion of Children’s Rights Act, which in its relevant provisions guarantees the right to respect for a child’s personality and expressly prohibits physical punishment or humiliating or degrading treatment (see paragraph 21 of the judgment). It might be fair to say that on the abstract level, the Respondent State complied with these requirements. Inexplicable and excessive delays, as they occurred in the present case, do not seem to be a result of a possibly deficient legal framework.

When finding a violation of any Article of the Convention, the Court is required to send a clear message to the national authorities as to which particular action or omission on their part was incompatible with the Convention requirements. I believe that the arguments as outlined in paragraphs 47-51 lack the clarity, strength and persuasiveness which are necessary to prevent violations from reoccurring in future.