D.M.D. v. Romania
European Court of Human Rights
3 October 2017
Article 19: protection from abuse and neglect
Other international provisions:
European Convention on Human Rights, Article 3
European Convention on Human Rights, Article 6(1)
European Social Charter, Articles 7 and 17
Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence
European Union VIctims’ Directive (2012/29/EU)
Protection and Promotion of Children’s Rights Act, Law No. 272/2004
The applicant was physically and emotionally abused by his father while he was a young child. The boy’s mother reported this violence to the Child Protection Authority and police in Bucharest on several occasions throughout 2004. Five months after the first complaint, police sent the file to the prosecutor’s office. More than a year later, a criminal investigation was launched and in September 2007, the father was indicted for abusive behaviour towards his son. Following two trials, he was convicted of “ill-treatment inflicted on a minor”. The son was initially awarded compensation for the harm he had suffered, but during a series of appeals in which the father’s sentence was amended, the compensation order was revoked. The boy approached the European Court of Human Rights.
Issue and resolution:
Domestic violence. The delay before the courts and lack of compensation violated the procedural protections under the prohibition of torture, inhuman and degrading treatment. National legal proceedings also violated fair trial standards.
The court found that the State had violated article 3 of the ECHR as the investigation into the allegations of ill-treatment was ineffective because it lasted too long and was marred by serious shortcomings. In particular, the court considered the fact that the investigation lasted three years and six months, domestic courts offered no compensation to the victim for the delay or the abuse he suffered and the failure of proceedings to protect the child’s dignity in affording protection against treatment that violates article 3 of the Convention.
The court found that the proceedings were unfair under article 6(1) of the convention. The court considered that it was irrelevant that the applicant had not requested compensation during the proceedings before the national courts as those courts had an obligation to examine whether he was due compensation regardless. The ECHR found that the court of appeal had failed to consider the role of the lower court in securing the best interests of the applicant in applying national law on compensation.The ECHR also noted the failure of the court to provide legal reasoning for its failure to examine the issue of compensation.
The court decided that it was unnecessary to rule on whether the length of the criminal proceedings violated the requirement under article 6(1) that proceedings take place within a reasonable time, as it had already found a violation of the procedural aspects of article 3.
Excerpts citing the CRC and other relevant human rights instruments:
30. The United Nations Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, also recognises the children’s right to be protected from domestic abuse and urges States to put in place adequate procedures and mechanisms to deal with the matter (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.”
31. The relevant part of General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia) adopted by the Committee on the Rights of the Child at its forty-second session held from 15 May to 2 June 2006, reads as follows:
“40. The principle of equal protection of children and adults from assault, including within the family, does not mean that all cases of corporal punishment of children by their parents that come to light should lead to prosecution of parents. The de minimis principle – that the law does not concern itself with trivial matters – ensures that minor assaults between adults only come to court in very exceptional circumstances; the same will be true of minor assaults on children. States need to develop effective reporting and referral mechanisms. While all reports of violence against children should be appropriately investigated and their protection from significant harm assured, the aim should be to stop parents from using violent or other cruel or degrading punishments through supportive and educational, not punitive, interventions.
41. Children’s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care. Prosecuting parents is in most cases unlikely to be in their children’s best interests. It is the Committee’s view that prosecution and other formal interventions (for example, to remove the child or remove the perpetrator) should only proceed when they are regarded both as necessary to protect the child from significant harm and as being in the best interests of the affected child. The affected child’s views should be given due weight, according to his or her age and maturity.
42. Advice and training for all those involved in child protection systems, including the police, prosecuting authorities and the courts, should underline this approach to enforcement of the law. Guidance should also emphasize that article 9 of the Convention requires that any separation of the child from his or her parents must be deemed necessary in the best interests of the child and be subject to judicial review, in accordance with applicable law and procedures, with all interested parties, including the child, represented. Where separation is deemed to be justified, alternatives to placement of the child outside the family should be considered, including removal of the perpetrator, suspended sentencing, and so on.”
32. On 18 April 2011 the UN Committee on the Rights of the Child issued a general comment on the right of the child to freedom from all forms of violence giving an overview of the instances of violence in children’s lives and a comprehensive legal analysis of Article 19 of the UN Convention on the Rights of the Child (General Comment No. 13 (2011)). It affirmed that no form of violence against children, however light, could be tolerated, including in the familial sphere, and reiterated the States’ obligation to prevent violence and protect child victims. The Committee further reiterated that corporal punishment, as defined in its general comment No. 8, however light, was also banned. The relevant parts read as follows:
“17. No exceptions. The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.
24. Corporal punishment. In general comment No. 8 (para. 11), the Committee defined “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion. In the view of the Committee, corporal punishment is invariably degrading. Other specific forms of corporal punishment are listed in the report of the independent expert for the United Nations study on violence against children (A/61/299, paras. 56, 60 and 62).
41. State parties that have not yet done so must:
(d) Review and amend domestic legislation in line with article 19 and its implementation within the holistic framework of the Convention, establishing a comprehensive policy on child rights and ensuring absolute prohibition of all forms of violence against children in all settings and effective and appropriate sanctions against perpetrators;
61. Article 3 (best interests of the child). The Committee emphasizes that the interpretation of a child’s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms of violence. It cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity. An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention. In particular, the Committee maintains that the best interests of the child are best served through:
(a) Prevention of all forms of violence and the promotion of positive child-rearing, emphasizing the need for a focus on primary prevention in national coordinating frameworks;
(b) Adequate investment in human, financial and technical resources dedicated to the implementation of a child rights-based and integrated child protection and support system.”
50. It is also to be noted that the overriding concern in the 1989 United Nations Convention on the Rights of the Child (see paragraph 30 above) is dignity. Such a value is consistent with both evolving international law on human rights and the developing psychological perspective in jurisprudence. Respect for the dignity of children is consonant with provision of those elements important to their growth as full members of the community. Assuring basic dignity to the child means that there can be no compromise in condemning violence against children, whether accepted as “tradition” or disguised as “discipline”. Children’s uniqueness – their potential and vulnerability, their dependence on adults – makes it imperative that they have more, not less, protection from violence, including from domestic corporal punishment, the latter being invariably degrading (see General Comment No. 13 (2011) cited at paragraph 32 above).
51. It is thus clear that respect for children’s dignity cannot be ensured if the domestic courts were to accept any form of justification of acts of ill-treatment, including corporal punishment, prohibited under Article 3. In this context, the Court considers that Member States should strive to expressly and comprehensively protect children’s dignity which in turn requires in practice an adequate legal framework affording protection of children against domestic violence falling within the scope of Article 3, including a) effective deterrence against such serious breaches of personal integrity, b) reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge, and c) effective official investigations where an individual raises an arguable claim of ill-treatment (see M. and M. v. Croatia, cited above, § 136, and Söderman v. Sweden [GC], no. 5786/08, §§ 80 and 81, ECHR 2013).
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.
CRIN believes this decision is consistent with the Convention on the Rights of the Child. Article 19 of the Convention requires States to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence and to take protective measures to prevent, identify, report, investigate and follow-up on instances of child maltreatment.
Application No. 23022/13
Link to Full Judgment: