Sexual abuse
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 49. At the date when the abuse against the first applicant occurred, the relevant provisions of the Criminal Code read as follows: Article 197 Rape “(1) Sexual intercourse with a female through coercion or taking advantage of her incapability of defending herself or of expressing her will, is punishable by three to ten years of imprisonment. (2) The sentence will be from five to fifteen years if: (a) the act was committed by two or more than two persons together; ... (3) The sentence will be from ten to twenty years if the victim is not yet fourteen years old ...” Article 198 Sexual intercourse with a minor female “(1) Sexual intercourse with a female who has not yet reached fourteen years of age is punishable by imprisonment of from one to five years.” Article 200 Sexual intercourse between persons of the same sex “(1) Sexual intercourse between persons of the same sex, carried out in public or which causes a public scandal, is punishable by imprisonment of between one and five years. (2) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of between two and seven years and loss of certain rights. (3) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing his or her will, or which is performed through coercion, is punishable by imprisonment of between three and ten years and loss of certain rights.” Article 201 Sexual perversion “(1) Acts of sexual perversion committed in public which cause a public scandal are punishable by imprisonment from one to five years.” Article 202 Sexual corruption “(1) Acts of an obscene nature committed to a minor or in his or her presence are punishable by imprisonment from three months to two years or by a fine.” 50. Articles 197 and 198 have been amended successively in order to recognise males as potential victims of rape and statutory rape, by Law no. 197/2000, which entered into force on 15 November 2000 and by Emergency Ordinance no. 89/2001, which entered into force on 26 June 2001. The latter Ordinance also decriminalised consenting same sex intercourse. 51. On 28 September 1990 Romania ratified the United Nations Convention on the Rights of the Child (“the CRC”), in force since 2 September 1990. The CRC stipulates that the best interests of the child and his or her dignity shall be a primary consideration in all actions concerning children (Article 3). 52. The CRC urges Member States to take all appropriate measures to protect children from all forms of violence, including sexual abuse, and to provide for the recovery and social reintegration of victims. The relevant articles read as follows: Article 19 “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” Article 34 “States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity;” Article 39 “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.” 53. The Committee on the Rights of the Child interpreted the text of the CRC in its General comments. Its latest General comment no. 13 (2011) on the right of the child to freedom from all forms of violence is aimed at guiding State parties in understanding their obligations under Article 19 of the CRC, building on existing documents and reflecting on the evolution of the protection in question. The Committee acknowledged the efforts of the States to prevent and respond to violence. It nevertheless found that the States were lagging behind in their obligations: “§ 12 ...In spite of these efforts, existing initiatives are in general insufficient. Legal frameworks in a majority of States still fail to prohibit all forms of violence against children, and where laws are in place, their enforcement is often inadequate.” The Committee expresses the view that States are under a “strict obligation” to undertake all appropriate measures to fully implement this right for all children (paragraph 37 of the General comment). Among the State obligations, the Committee identified the need to: review and amend domestic legislation in line with Article 19 of the CRC; ensure protection to child victims and effective access to redress and reparation; enforce law in a child-friendly way; and provide for counselling support (paragraphs 41-44 of the General comment). The Committee develops further on the content of the “protective measures”, stressing the importance of prevention, the need for an easily accessible report mechanism, the importance of rigorous and child-sensitive investigation and of effective and child-friendly justice where due process must be respected (in particular paragraphs 45-58 of the General comment). 54. On 25 October 2007 the Council of Europe, recognising that the well-being and best interests of children are fundamental values shared by all member States, adopted the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse urging the Member States to adopt measures to protect children from any form of abuse and to put in place a system capable of punishing any such acts. On 17 May 2011 the respondent State ratified that Convention which entered into force in respect of Romania on 1 September 2011. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 55. The first applicant complained under Articles 3 and 8 of the Convention about the violence and sexual abuse he was subjected to by P.E. with the help of S.P. and L.I.D. Both applicants complained under Article 8 that P.E. destroyed their home and family and that they had been forced to leave town after the events in order to reconstruct a normal life. 56. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 57. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 58. The Government averred that the applicants’ complaint under Article 8 refers only to the fact that the alleged perpetrators had been acquitted and that the applicants had been forced to leave town in order to protect the first applicant after the incidents. In their view, these aspects should not fall within the realm of Article 8 of the Convention and in any case the applicants could not be considered victims of a violation of that Article. They put forward that the applicants had chosen to leave and had not been forced to do so by the authorities; the applicants had also waited for nine months after the end of the proceedings and almost seven years after the events before they had actually moved. The Government also pointed out that the applicants had failed to complain to the authorities about any impact on their private and family lives of the allegedly ineffective investigation. 59. The applicants contested those arguments. 60. The Court notes that the second applicant only complains about the fact that he and his family had been forced to leave town after the events. These allegations are also raised by the first applicant in his complaint under Article 8. However, there is no indication in the file that the authorities had in any way contributed to that departure. Furthermore, the applicants had not complained as such to the authorities about the fact that they had had to leave town. It follows that this part of the complaint raised by the first applicant and the whole complaint raised by the second applicant are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 61. Furthermore, the Court notes that the first applicant complained about ill-treatment inflicted by a third party. At no point did he claim that State officials had been involved in the actual abuse. It follows that, as far as the complaint concerns the material aspects of Article 3 of the Convention, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 62. Lastly, the Court considers that in so far as it concerns the effectiveness of the investigations and their impact on the first applicant’s family life, the remainder of the complaint raised by the first applicant under Articles 3 and 8 of the Convention is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ positions 63. The first applicant pointed out that abuse such as that he had suffered had been qualified by the Court as torture. He made reference to the case of Aydın v. Turkey (25 September 1997, Reports of Judgments and Decisions 1997 ‑ VI), where the victim had been in detention. As for the proceedings in the case at hand, he argued that the investigation had been neither prompt nor effective, that the prosecutor had waited for three weeks before opening the investigation and for two months to question P.E. He also contended that some essential investigative steps had not been taken by the police, in particular the taking of DNA samples from the applicants’ flat, from the accused persons and from the dog; while some measures had been overemphasised, despite their limited relevance to the facts. The first applicant also complained about the manner in which the courts had weighted the evidence, pointing out, in particular, that the courts had discarded the direct evidence proving P.E.’s guilt (polygraph test, police line up, first medical certificates) while favouring later expert evaluations of the victim and blaming the parents for not having reacted sooner. 64. Lastly, the first applicant complained that the legal classification given to the facts by the domestic courts contradicted the Convention requirements and had only been made possible because there had been no adequate legislation to deal with rape of boys at that time. 65. The Government contended that the authorities had had a difficult task in establishing the facts of the case, given the conflicting statements made by the victim, his family and the witnesses throughout the proceedings. In their view, the investigation had been prompt, thorough and rapid and the mere fact that a conviction had not been secured did not render the investigation ineffective. They considered that it had taken the victim’s family too long to react despite the fact that there had been visible signs of abuse. That attitude was, in their view, inexplicable, especially since the child had not had any social problems before the incidents. 66. The Government also pointed out that the obligation imposed on the States under the procedural head of Article 3 was not an obligation of result but one of means. 67. As far as Article 8 is concerned, the Government contended that, in the context of the case and given the way the applicants phrased their complaint, it would be difficult to identify a negative or positive obligation incumbent on the State. 2. The Court’s appreciation (a) General principles 68. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003 ‑ XII). 69. Furthermore, the absence of any direct State responsibility for acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from all obligations under this provision. In such cases, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill-treatment even if such treatment has been inflicted by private individuals (see M.C., cited above, § 151, and Denis Vasilyev v. Russia, no. 32704/04, §§ 98-99, 17 December 2009). 70. Even though the scope of the State’s positive obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the requirements as to an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context. In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time. Consideration has been given to the opening of investigations, delays in taking statements and to the length of time taken for the initial investigation (see Denis Vasilyev, cited above, § 100 with further references; and Stoica v. Romania, no. 42722/02, § 67, 4 March 2008). 71. Furthermore, positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State’s margin of appreciation, effective deterrence against serious acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see M.C., cited above, § 150). 72. The Court reiterates that it has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard the individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see M.C., cited above, § 152). Lastly, the Court notes that the United Nations Committee on the Rights of the Child has emphasised that a series of measures must be put in place so as to protect children from all forms of violence which includes prevention, redress and reparation (see paragraphs 52 ‑ 53 above). (b) Application of those principles to the case under examination 73. On the facts of the case, the Court notes at the outset that the acts of violence suffered by the first applicant and not contested by the Government undoubtedly meet the threshold of Article 3. The State’s positive obligations were thus called into action. 74. The Court notes with concern that despite the gravity of the allegations and the particular vulnerability of the victim, the investigations did not start promptly. Indeed, it took the authorities three weeks from the date the complaint had been lodged, to order the medical examination of the victim and almost two months to question the main suspect. The investigation took five years and the applicants’ repeated complaints about its length were unsuccessful. The County Court acknowledged the significant lapse of time, but drew no inference from it. Furthermore, the Court notes that for almost three years no significant investigative steps were taken after the prosecutor’s first decision not to prosecute (16 June 2000), despite the repeated hierarchical instructions to continue the investigations. 75. At the end of the criminal proceedings, some seven years after the date of the alleged facts, the accused person was exonerated. Nothing in the file indicates that the authorities tried to find out if somebody else could be held criminally responsible for these serious crimes. This raises doubts as to the effectiveness of the proceedings, in particular in such a sensitive case as that involving the violent sexual abuse of a minor (see, mutatis mutandis, Stoica, cited above, § 77). 76. The Court has found no indication of arbitrariness in the way the courts classified the facts in law. Indeed, in application of the principle of the more lenient criminal law, the rape of male juveniles was not criminally punishable at the time, as males were not recognised as potential victims of rape until 15 November 2000 and as in 2001 Article 200, which prohibited sexual intercourse with a person of the same sex, including through coercion, was abolished (see paragraphs 49 and 50 above). Before the scope of the protection against rape was extended to potential male victims, the system allowed nevertheless for those acts to be reprimanded in the context of other crimes, such as the ones invoked in the case under examination. The Court notes that the respondent State’s legislation currently protects all persons, including male and female juveniles, against rape, including statutory rape. It also notes that Romania has ratified the CRC and the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (see paragraphs 51-54 above) which provide obligations for the Member States to protect children against any form of abuse. 77. As for the proceedings in the case at hand, the Court reiterates that it is not concerned with allegations of errors or isolated omissions in the investigation; that it cannot replace the domestic authorities in the assessment of the facts of the case; and that it cannot decide on the alleged perpetrators’ criminal responsibility (see M.C., cited above, § 168). In similar cases, the Court has expressed the opinion that it was for the authorities to explore all the facts and decide on the basis of an assessment of all the surrounding circumstances (see M.C., cited above, § 181). 78. Notwithstanding its subsidiary role in the matter, the Court is particularly concerned that the authorities did not try to weigh up the conflicting evidence and made no consistent efforts to establish the facts by engaging in a context-sensitive assessment (see M.C., cited above, § 177). The Court emphasises that investigation has to be rigorous and child ‑ sensitive in case involving violence against a minor. 79. The Court cannot but note that while the authorities adopted a lax attitude concerning the length of the investigation, the domestic courts attached significant weight to the fact that the family did not report the alleged crimes immediately to the police and that, to a certain extent, the victim did not react sooner (see paragraph 47 above). 80. The Government also evoked the parents’ alleged negligence in spotting and reporting the abuse in good time. Even if - with hindsight - it might have been advisable for the parents to take prompt action when they noticed the first changes in the behaviour of the first applicant and the blood in his underpants, the Court fails to see how this could have had a major impact on the diligence of the police in their response to the reported facts. Neither can the Court understand why the domestic courts have attached such a significant weight to that fact. 81. Concerning notably the weight attached to the victim’s reaction, the Court considers that the authorities were not mindful of the particular vulnerability of young people and the special psychological factors involved in cases concerning violent sexual abuse of minors, particularities which could have explained the victim’s hesitations both in reporting the abuse and in his descriptions of the facts (see M.C., cited above, § 183). 82. The Court points out that the obligations incurred by the State under Articles 3 and 8 of the Convention in cases such as this require that the best interests of the child be respected. The right to human dignity and psychological integrity requires particular attention where a child is the victim of violence (see, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III). The Court regrets that the first applicant was never offered counselling and was not accompanied by a qualified psychologist during the proceedings or afterwards. The only mention of such support is from the school counsellor, who suggested that it would be better if the family moved away. Bearing in mind the positive obligations that the Respondent State has assumed under the various international instruments protecting the rights of child, this cannot be considered to constitute an adequate measure for “recovery and reintegration”. 83. The failure to adequately respond to the allegations of child abuse in this case raises doubts as to the effectiveness of the system put in place by the State in accordance with its international obligations and leaves the criminal proceedings in the case devoid of meaning. The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to meet their positive obligations to conduct an effective investigation into the allegations of violent sexual abuse and to ensure adequate protection of the first applicant’s private and family life. There has accordingly been a violation of Articles 3 and 8 of the Convention in respect of the first applicant. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 84. The first applicant complained about the length and outcome of the investigation and of the criminal proceedings. He relied on Article 6 of the Convention. 85. Both parties presented observations on the matter. 86. Having regard to the finding relating to Articles 3 and 8 (see paragraph 70 above), the Court considers that this complaint is admissible, but that it is not necessary to examine whether, in this case, there has been a violation of Article 6 (see, among other authorities, Bota v. Romania, no. 16382/03, § 59, 4 November 2008). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 87. Lastly, the first applicant complained, under Article 2 of the Convention, that P.E. had threatened to kill him if he told anyone about the abuse and under Article 5 of the Convention that P.E. had deprived him of his liberty. 88. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 89. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 90. The applicants claimed 1,000,000 euros (EUR) in respect of non ‑ pecuniary damage suffered by the first applicant. 91. The Government argued that there was no causal link between the alleged violation and the amount sought and that the applicants’ claims were in any case exaggerated. Lastly, they suggested that a finding of a violation would constitute just satisfaction in the case. 92. The Court acknowledges that the first applicant must have suffered hardship and distress because of the ineffective investigation and the interference with the normal course of his private and family life. It therefore awards the first applicant EUR 15,000 in respect of non-pecuniary damage. B. Costs and expenses 93. The applicants did not make a claim under this head. C. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court, finding that the authorities had failed to carry out an effective investigation into the allegations of violent sexual abuse of the first applicant and to ensure adequate protection of his private and family life, held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) and of Article 8 (right to respect for private and family life) of the Convention. In this judgment, the Court clearly recognised that States had an obligation under Articles 3 and 8 of the Convention to ensure the effective criminal investigation of cases involving violence against children. It, moreover, specifically referred to the international obligations Romania had undertaken for the protection of children against any form of abuse5, including helping recovery and social reintegration of victims, and particularly regretted that the first applicant had never been provided with counselling or been accompanied by a qualified psychologist during the proceedings concerning his rape or afterwards.