CEDH · CASELAW;CLIN;ENG — 27 septembre 2011

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Romania - 29032/04 Judgment 27.9.2011 [Section III] Article 3 Positive obligations Failure to effectively apply criminal-law mechanisms to protect child from sexual abuse: no violation   Article 8 Positive obligations Failure to effectively apply criminal-law mechanisms to protect child from sexual abuse: violation   Facts – The first applicant was awarded custody of her son, the second applicant, after her divorce from the boy’s father who was allegedly of a violent temperament. Three years later, shortly after the father was granted contact rights, the first applicant filed a criminal complaint against him alleging attempted sexual abuse of their son. The complaint was supported by a medical certificate issued some days earlier attesting to injuries to the boy’s anus which could have been produced by a sexual assault. Several witnesses were heard. Both the first applicant and the boy’s father sat lie-detector tests the results of which indicated that the first applicant, but not the father, may have been lying about the alleged sexual assault. Consequently, the authorities decided not to indict the father. In the interim the first applicant had successfully applied for the boy to be temporarily placed in a State institution, where he remained for over a year. Both parents were allowed to visit once a week, but neither were permitted to take him home. At the first applicant’s request, the boy was returned to her in October 1999. In May 2001 the first applicant lodged a civil action seeking to limit the father’s contact with the child. The court hearing the case concluded that the first applicant’s intention to completely exclude the father from her son’s life was a result of his exclusion from the Jehovah’s Witnesses shortly before the couple’s divorce and it did not rule out the possibility that the first applicant had caused the child’s injuries herself and tried to frame the father. Ultimately, the domestic courts dismissed the first applicant’s claim, relying, inter alia , on that fact that the authorities had decided not to bring charges against the father. Law – Articles   3 and   8: The States had a positive obligation under Articles   3 and 8 of the Convention to enact criminal-law provisions effectively punishing sexual abuse of children and to apply them in practice through effective investigation and prosecution. It therefore had to be determined whether there had been such significant flaws in the criminal investigation as to amount to a breach of Romania’s positive obligations in respect of the second applicant. It was true that the authorities had been faced with a difficult task, as they were confronted with a sensitive situation, conflicting versions of events and little direct evidence. They had diligently reacted to the first applicant’s request to temporarily place her son in a State institution in order to protect him. Witnesses had been heard and forensic and expert evidence obtained, including the results of a lie-detector test. However, the prosecuting authorities had failed to verify the credibility of all the witness statements and in the final decision to discontinue the criminal proceedings against the father had failed to follow the instruction of their superior and relied exclusively on the evidence collected previously. Most importantly, even though considering it a possibility, the domestic authorities had failed to examine whether the father’s conduct could have constituted another criminal offence, such as hitting or other forms of violence. They also failed to examine whether a criminal investigation should be opened against the first applicant. They had attached little weight to the particular vulnerability of young persons and the special psychological factor involved in cases concerning sexual abuse of children. Finally, there had been significant delays in the investigation. In conclusion, the authorities had not explored all the options for a thorough investigation of the case and so had failed to comply with their positive obligations to effectively punish all forms of sexual abuse. Conclusion : violation in respect of the second applicant (six votes to one). Article   8: The first applicant also complained that she had been separated from her son as a result of his placement in a State institution for over a year. The Court observed that the second applicant had been placed there at the first applicant’s request with a view to protecting him from the violent atmosphere in the family. During his stay, he had received regular weekly visits from both parents and there was no proof or suggestion that the contact with his father had in any way been harmful. The authorities had shown the degree of prudence and vigilance necessary in the sensitive situation at issue and their actions had not been to the detriment of the first applicant or the superior interests of her child. Conclusion : no violation (unanimously). Article   41: EUR   13,000 to the second applicant 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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