The ECHR found violations of the requirements of articles 3 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found violations of the requirements of articles 3 and 6 of the Convention for the Protection of Hu Сведения: 2018-07-16 09:12:24

The ECHR judgment of 03 October 2017 in the case "D.M.D. (D.M.D.) v. Romania" (аpplication No. 23022/13).

In 2013, the applicant was assisted in preparing the аpplication. Subsequently, the аpplication was communicated to Romania. The case was successfully considered a complaint about the excessive length of the investigation and trial of domestic violence against a minor child, other shortcomings in the course of the investigation and trial. The case involved violation of the requirements of articles 3 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


The applicant was born in 2001. In February 2004, his mother asked the child protection agency to report that her son was subjected to domestic violence by her husband, the father of the child. From March to July 2004, she complained to the police five more times. After the fifth complaint, the authorities started a criminal trial. The prosecutor's office heard the testimony of six witnesses, examined psychological conclusions, and as a result, the applicant's father was charged in December 2007.

The case was examined in three instances. The applicant's father was first acquitted, since the courts decided that his "periodically inadequate behavior" in relation to his son was not a crime. However, after several transmissions of the case in connection with various shortcomings in the decisions of lower courts, the district court finally found the applicant's father guilty of physical and verbal violence against his son in April 2012, finding that the applicant's father's actions were more serious than " single or accidental "violence that can occur if parents simply punish their children.

The trial ended in November 2012 after the filing of cassation complaints by both parties. The Court of Appeal confirmed that the father used violence against his child and sentenced him to a suspended prison term that was reduced due to the excessive length of the trial. The applicant and the prosecutor complained that the applicant was not awarded any compensation. However, the appellate court ruled that he could not consider the issue of compensation, since neither the applicant nor the prosecutor requested her to pay in lower courts.


ISSUES OF LAW


Concerning compliance with Article 3 of the Convention (procedural aspect). The Court recalls that States should strive to protect children's dignity clearly and comprehensively. This, in turn, requires in practice the existence of an appropriate legal framework providing for the protection of children from domestic violence, including (a) effective deterrence from such serious violations of personal integrity, (b) taking reasonable steps to prevent ill-treatment known to the authorities or should know, and (c) conduct an adequate official investigation if the person submits a provable allegation of ill-treatment.

An essential goal pursued by the investigation of allegations of domestic violence in the applicant's case could be considered achieved if the person responsible for the violence (father) was subsequently convicted and sentenced to imprisonment. However, despite this, the investigation should have been considered ineffective, since it lasted too long and was characterized by serious shortcomings.

(a) Duration of the investigation. The authorities first learned about the applicant's situation in February 2004, when his mother informed the child protection agency of domestic violence. However, there was no indication that something specific had been done to verify this information, its transfer to the police or the protection of the victims. The authorities did not take any action with respect to the first four applications for criminal proceedings filed by the mother against the applicant's father from March to June 2004. When the investigation finally began in July 2004, it lasted almost three years and six months. In total, due to significant periods of inactivity on the part of investigators and the Institute of Forensic Medicine, a number of canceled decisions, owing to omissions of lower courts, the proceedings continued for eight years and four months in three instances. This period of investigation was excessive.

(b) Disadvantages of the investigation. There were obviously several shortcomings in the proceedings: (i) Unlike the father whose punishment was reduced, the applicant was not afforded any form of compensation for the excessive length of the case, (ii) the applicant did not receive compensation for the violence to which he was subjected ( (iii) The approach of domestic courts to the issue of domestic violence, which presumably implies that "isolated and incidental" acts of domestic violence can be tolerated, incompatible with domestic law or with the Convention, which prohibit ill-treatment, including corporal punishment. Indeed, any form of justification for child abuse, including corporal punishment, detracts from respect for children's dignity.

For the foregoing reasons, taking into account the importance of the case to the applicant, the length and speed of the procedure, the difference in treatment between the applicant and the offender in respect of this duration, and the manner in which the courts dealt with the issue of domestic violence, the Court concluded that the investigation into allegations of ill-treatment was ineffective.

 

DECISION


There has been a violation of Article 3 of the Convention (unanimously).

Concerning compliance with article 6, paragraph 1, of the Convention (fair trial). The Court observes that under Romanian law (article 17 of the Code of Criminal Procedure), domestic courts are required to consider compensation in cases in which the victim was a minor and therefore incompetent, even in the absence of a formal claim of the victim. Courts and the prosecutor had to actively seek information from the victim about the extent of the damage caused. Consequently, the legislation provided enhanced protection to vulnerable persons, such as the applicant, by imposing on the authorities an expanded duty to take an active role in this regard. For this reason, and in the light of the subject matter of the investigation, the proceedings went beyond the mere dispute between private persons and therefore included the responsibility of the State in accordance with article 6, paragraph 1, of the Convention.

In view of this ambiguous formulation of domestic legislation, the appellate court should have examined the merits of the applicant's complaint about evading compensation. Instead, he limited himself to pointing out that neither the prosecutor nor the applicant requested compensation in the lower courts and therefore did not consider the role of the courts of the country or the prosecutor in ensuring the best interests of the applicant. This circumstance amounted to a denial of justice in violation of Article 6 § 1 of the Convention.


DECISION


There has been a violation of Article 6 of the Convention (four votes in favor, three against).

The Court also unanimously found that, in view of its finding of a procedural violation of Article 3 of the Convention, there is no need to examine separately the applicant's complaint under Article 6 § 1 of the Convention.


COMPENSATION


In the application of Article 41 of the Convention. The Court awarded EUR 10,000 in respect of non-pecuniary damage to the applicant.

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