Published on 12 June 2023

FOURTH SECTION

Application no. 27737/22 M.S. and Others against Romania lodged on 2 June 2022 communicated on 23 May 2023

SUBJECT MATTER OF THE CASE

The application concerns the criminal investigation conducted following the first applicant’s complaint concerning child abuse, whose victims were the second and the third applicant, who are the first applicant’s children. The first applicant started divorce proceedings in 2017. During the litigation for custody of the couple’s two children – the second and third applicant, a girl aged 7 years and a 1-year-old boy at the time – the first applicant accused the father of her children of domestic violence against her and the two children, in particular against their daughter. In 2018, while the divorce proceedings were still pending, the applicant submitted a criminal complaint. While questioned by the police on 12 March 2019, the daughter described that her father had an improper behaviour of a sexual nature. Following this statement, the police changed the initial accusation to sexual aggression of a minor. The criminal proceedings initiated in 2018 are ongoing and in the pre-trial stage.

On 12 July 2019 the Bucharest District Court pronounced the divorce and established the residence of both children with their father. Upon the first applicant’s appeal, on 3 February 2022 the Bucharest County Court partly reversed the initial judgement establishing the daughter’s residence with her mother.

On 16 May 2022 the first applicant submitted to the Bucharest District Court a request to accelerate the criminal proceedings.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection from all forms of ill ‑ treatment prohibited under Article 3 (see paragraph 131 of Labita v. Italy [GC], no. 26772/95), was the conduct of the investigation by the domestic authorities in the present case, relating to the alleged abuse of the children in compliance with Article 3 of the Convention?

In particular, has the investigation been thorough and prompt and has it taken into account the children’ best interests (see, notably, C.A.S. and C.S. v. Romania , no. 26692/05, §§ 70, 82-83, 20 March 2012, D.M.D. v. Romania , no. 23022/13, §§ 41 and 50-52, 3 October 2017, and M. and M. v. Croatia , no. 10161/13, §§ 136 and 142, ECHR 2015 (extracts))?

2. Has there been a violation of the second and third applicants’ right to respect for their private life, contrary to Article 8 of the Convention? In particular, did the authorities comply with their positive obligations, inherent in the right to effective respect for private life, to investigate the allegations of child abuse and, if necessary, to prevent the reoccurrence of such treatment (see C.A.S. and C.S. v. Romania , cited above, §§ 71-72, M.C. v. Bulgaria , no. 39272/98, §§ 150 ‑ 52, ECHR 2003 ‑ XII, K.U. v. Finland , no. 2872/02, §§ 42-43, ECHR 2008)?

3. Has there been an interference with the first applicant’s right to respect for her private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

4. In the context of an on-going dispute before the domestic courts between the first applicant and the alleged abuser in relation to the residence of the son and the on-going criminal proceedings, is there a potential conflict of interest between the first applicant mother and the second and third applicant children so as to require separate representation before the Court (see, mutatis mutandis , E.M. and Others v. Norway , no. 53471/17, § 64, 20 January 2022, and A and B v. Croatia , no. 7144/15, § 3, 20 June 2019)? If so, what is the appropriate mechanism to ensure that the second and third applicants are able to effectively exercise their right to individual petition under Article 34 of the Convention?

APPENDIX List of applicants

No.

Applicant’s name

Year of birth

Nationality

Place of residence

1.M.S.

1977Romanian

Bucharest

2.S.I.S.

2010Romanian

Bucharest

3.T.S.S.

2016Romanian

Bucharest