CASE OF M.S. AND OTHERS v. ROMANIA

 

 

FOURTH SECTION

CASE OF M.S. AND OTHERS v. ROMANIA

(Application no. 27737/22)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

16 June 2026

 

This judgment is final but it may be subject to editorial revision.

In the case of M.S. and Others v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Ana Maria Guerra Martins, President,
 Anne Louise Bormann,
 Sebastian Răduleţu, judges,
and Valentin Nicolescu, Acting Deputy Section Registrar,

Having regard to:

the application (no. 27737/22) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 June 2022 by three Romanian nationals, whose relevant details are listed in the appended table (“the applicants”), and who were represented by Mr F.A. Dumitrescu, a lawyer practising in Bucharest;

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the decision not to have the applicants’ names disclosed;

the parties’ observations;

Having deliberated in private on 26 May 2026,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns a criminal investigation conducted following the first applicant’s complaint that her children (the second and third applicants, born in 2010 and 2016) had been the victims of child abuse.

2.  The first applicant started divorce and custody proceedings in 2017. During those proceedings, it was provisionally established that the second and third applicants – a girl aged seven and a boy aged one at the time – would reside with her. The children’s father, A., was granted visiting rights. The first applicant subsequently alleged that, during his contact visits, A. had committed acts of domestic violence against her and the second and third applicants, in particular against their daughter (the second applicant).

3.  On 13 July 2018, in a handwritten complaint to the police which was subsequently included in a criminal file (see paragraph 6 below), the first applicant complained that A. was violent towards her and the children and that she felt threatened.

4.  A forensic report of 4 December 2018 issued by the National Institute of Forensic Medicine (hereinafter “the NIFM”) indicated that the second applicant had two bruises on her right arm (measuring 15 cm and 7.5 cm respectively) resulting from trauma which could have been sustained that day.

5.  On 5 December 2018 the first applicant submitted a criminal complaint in respect of A’s allegedly violent behaviour. The police opened a criminal investigation in rem (that is, without a designated suspect).

6.  During the criminal investigation and the administrative proceedings described below, the first applicant was considered by the domestic courts and by the local social services to be the “legal representative” of the second and third applicants.

7.  On 23 January 2019, A. was questioned as a witness in relation to the above-mentioned criminal complaint.

8.  On 12 March 2019, while being questioned by the police for the first time, the second applicant indicated that her father had engaged in improper behaviour of a sexual nature. On 1 April 2019 the prosecutor in charge of the case extended the scope of the investigation to include the charge of sexual assault of a minor.

9.  According to various psychological reports subsequently issued at the request of the social services – one of which was dated 25 April 2019 – the second applicant strongly opposed maintaining contact with her father. Those reports were included as evidence in the criminal file.

10.  In the divorce and custody proceedings (see paragraph 2 above), on 12 July 2019 the Bucharest District Court pronounced the divorce. It established that the first applicant and A. should have joint custody of the second and third applicants, and that both children were to reside with their father. However, a report by the bailiff regarding the forced execution of this decision in respect of the children’s residence noted on 27 January 2020 that the second applicant had refused to approach her father because she was afraid of him.

11.  On 7 February 2020, the prosecutor requested that the NIFM conduct a psychiatric examination of the second applicant, in order to establish if she was a victim of sexual abuse (see paragraph 13 below).

12.  On 23 June 2020, as part of the ongoing investigation, A. was questioned for the second time, particularly in relation to the alleged sexual abuse (see paragraph 8 above).

13.  A forensic report issued on 2 October 2020 by a commission of three experts (a forensic doctor and a psychiatrist at the NIFM, joined by a child psychiatrist) concluded that the second applicant did not display the behaviour of an abused child. The report indicated that the second applicant had been examined in the presence of her father, and that she had been “asked to say what was going wrong for her”. The report noted that, during the examination, “she [had] bec[o]me anxious, [had been] in obvious difficulty and [had] started to cry, abandoning her previous statements in front of the members of the commission”. The report concluded that the obscene acts described by the second applicant had been a result of her imagination and that she had intended to “punish” her father for separating her from her brother and potentially separating her from her mother. Referring to several past events, the report noted that the second applicant had called several different emergency services (including those for children) while staying with her father because he had allegedly been violent towards her.

14.  On 20 November 2020, the social services (Direcţia Generală de Asistenţă Socială și Protecţia Copilului – hereinafter “the DGASPC”) of the 4th District of Bucharest sent an “information letter/invitation” to both the first applicant and A., which was later attached to the criminal investigation file, indicating that “because [their daughter showed] signs of emotional abuse (nightmares, anxiety)”, it was recommended that both parents and the child follow separate counselling programmes.

15.  On 22 March 2021, while the divorce and custody proceedings were pending before the Bucharest County Court following an appeal by the first applicant, the court requested that the NIFM conduct another psychiatric examination of the second applicant, in order to establish if she was a victim of emotional abuse.

16.  A forensic report issued on 6 August 2021 by a commission of three specialists (a forensic doctor and a psychiatrist at the NIFM, joined by a child psychiatrist at the Prof. Dr Alexandru Obregia Public Psychiatric Hospital in Bucharest) concluded that no signs of emotional abuse could be detected. The report noted that the second applicant had indicated that her father often shouted at her and that she had witnessed him beating her mother, actions which it considered “inappropriate” and “clumsy” (“stângăcie”). The report also noted that, while at home, the second applicant’s father was sometimes naked or wore only underwear in her presence. However, it considered such nudity to “[lack] any sexual connotation” (“nu s-a evidenţiat o conotaţie sexuală a acestui comportament”) and to constitute “a habit which was accepted in some parts of society [and was] common among less educated people” (“comportament acceptat în anumite medii sociale și este o practică întâlnită la persoane cu anumite carenţe educaţionale”). That report was also included in the criminal investigation file.

17.  On 3 February 2022 the Bucharest County Court reversed in part the initial judgment adopted in the divorce proceedings, establishing that the second applicant should reside with her mother.

18.  Following a complaint lodged by the first applicant concerning the criminal investigation, by an interlocutory judgment of 9 June 2022 that was not amenable to appeal, the District Court acknowledged that the length of the investigation had been excessive and ordered the prosecutor’s office to expedite it. The District Court noted that over the past years the investigators had only heard a few witnesses (two in 2019, two in 2020, and three in 2021) and that those interviews did not explain the duration of the criminal investigation, especially since the case was not particularly complex and the alleged victims had not contributed in any way to its length. The court ordered the prosecutor’s office to conclude the investigation within seven months of being notified of its judgment. Following subsequent complaints lodged by the first applicant, the District Court reiterated similar injunctions by interlocutory judgments of the Bucharest District Court on 27 January and 10 October 2023.

19.  On 13 November 2023 the prosecutor’s office held that the investigation should be closed in so far as it concerned the offence of sexual assault, holding that that offence had not taken place. As to the alleged acts of aggression on 4 December 2018 (see paragraph 4 above), the prosecutor considered, in particular, that they had not been committed intentionally; rather, the second applicant, in an attempt to escape her father’s grip, had hurt herself against a door. Regarding the alleged sexual abuse – namely, that A. sometimes only wore underwear when at home in the presence of the second applicant, that he “entered the bathroom to watch her no matter what she was doing” and that he got naked into bed with her when he thought that she was asleep – the prosecutor considered that the second applicant “had been unable to give enough concrete details regarding the time [and] place [of the alleged acts or] the manner in which they had been committed”. As such, a sufficient degree of credibility could not be attached to her words.

20.  While the above-mentioned criminal investigation into the second applicant’s allegations was pending, by a letter of 24 March 2021, the DGASPC of the 4th District of Bucharest informed the DGASPC of the 1st District of “possible verbal, physical and emotional abuse” of the third applicant by his father, and it forwarded two administrative complaints in that regard which had been lodged by the first applicant. As a result, on 28 July 2021 a psychologist employed by the social services conducted an interview with the third applicant in the presence of his father. After three meetings, a report was issued, which noted that the boy (then aged five) had not cried, had been relaxed when playing, and had mentioned that he loved his father even if he “was bad” and used to subject him to corporal punishment when he did something wrong (“mă bate la fund dacă fac p[r]ostioară”). The report also noted that the third applicant had indicated that his father had subjected the second applicant to corporal punishment. The report concluded that the third applicant did not show any signs of emotional abuse.

21.  During the proceedings described above, the first applicant made several hierarchical complaints regarding employees of the DGASPC. One of the complaints concerned a psychologist who had prepared a report on the situation of the second and third applicants, several pages of which had included the personal data of another family. An investigation by a journalist had found that the report had reproduced large parts of another report concerning other children. By a letter of 29 October 2020, the national agency responsible for the social protection of children (Autoritatea Naţională pentru Drepturile Persoanelor cu Dizabilităţi, Copii și Adopţii) informed the first applicant that disciplinary proceedings had been launched against several employees of the DGASPC. It noted, in particular:

“... [I]n spite of the fact that since 2018 you have repeatedly contacted the social services in relation to child abuse, the DGASPC has not conducted a proper evaluation of the allegations in line with the legal requirements.”

22.  Relying on Articles 3, 6 and 14 of the Convention, the applicants complained that the investigation conducted by the domestic authorities into their allegations of domestic violence had been ineffective, had not managed to offer protection to the vulnerable victims, and had been excessively lengthy.

THE COURT’S ASSESSMENT

REPRESENTATION OF THE SECOND AND THIRD APPLICANTS

23.  The Government questioned whether the first applicant had standing to lodge an application on behalf of her two children (the second and third applicants). The Court reiterates that a mother with parental authority in respect of her child can have standing to lodge an application on behalf of that child even if he or she does not reside with the mother (see Petrov and X v. Russia, no. 23608/16, § 83, 23 October 2018, and R.B. and M. v. Italy, no. 41382/19, § 42, 22 April 2021). On several occasions the Court has accepted that, particularly in cases concerning child abuse, even parents who did not have parental rights could apply to it on behalf of their minor children to avoid the risk that some of the children’s interests might not be brought to its attention and that they would be denied effective protection of their Convention rights (see Strand Lobben and Others v. Norway [GC], no. 37283/13, §§ 156-59, 10 September 2019).

24.  In the present case, the Court notes that the first applicant – the mother of the second and third applicants – has never lost parental rights by way of domestic proceedings and that, at the time of the criminal complaint, both children resided with her, under provisional arrangements decided during the first stage of the divorce and custody proceedings (see paragraphs 2 and 5 above), arrangements which lasted until the divorce and custody judgment of 12 July 2019, partially uphold following appeal proceedings (see paragraphs 10 and 17 above). Moreover, for the entire duration of the criminal investigation and the administrative proceedings, the first applicant was considered by the domestic courts and by the local social services to be the “legal representative” of her children (see paragraph 6 above).

25.  The Court further notes that, despite having been invited to do so, the Government have not presented any arguments as to the existence under domestic law of an 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 in the event of a potential conflict of interest between them and the first applicant (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).

26.  Having regard to the above, the Court therefore concludes that the first applicant had standing to lodge an application on behalf of her two children, the second and third applicants.

ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT

27.  The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and that it is not bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). Given the nature and substance of the second applicant’s complaints, they fall to be examined under Articles 3 and 8 of the Convention, both of which entail an obligation on the State to safeguard the physical and psychological integrity of a person (see C.A.S. and C.S. v. Romania, no. 26692/05, §§ 68-72, 20 March 2012).

28.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

29.  The general principles concerning States’ positive obligations under Articles 3 and 8 have been summarised in A and B v. Croatia (cited above, §§ 106-13, with further references) and, as regards particularly children victims of violence, in C.A.S. and C.S. v. Romania (cited above, § 82).

30.  The relevant provisions of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“the Lanzarote Convention”), which was adopted by the Committee of Ministers on 12 July 2007 and entered into force on 1 July 2010, are described in X and Others v. Bulgaria ([GC], no. 22457/16, § 127, 2 February 2021).

31.  The Court notes that the domestic investigation into the injuries sustained by the second applicant when she was eight years old was conducted from 5 December 2018 until 13 November 2023 – that is, for almost five years – first in respect of allegations of ill-treatment and, later on, of sexual assault (see paragraphs 5-6 and 8 above).

32.  The Court agrees with the findings of the District Court, which acknowledged that the length of the investigation had been excessive while noting that the investigators had only heard a few witnesses between 2019 and 2021, the case was not particularly complex and the alleged victim had not contributed in any way to its length (see paragraph 18 above).

33.  The Court further notes that the alleged perpetrator (the second applicant’s father) was first questioned as a witness by the investigators six weeks after the criminal complaint had been lodged despite existing forensic evidence (see paragraphs 4-7 above). Moreover, he was questioned in relation to the allegations of sexual assault more than one year after the victim had told the police that her father had displayed what she described as improper behaviour of a sexual nature (see paragraphs 8 and 12 above). Similarly, it was nearly one year after the second applicant had given her statement that the prosecutor requested that the NIFM conduct a psychiatric examination of her in order to establish if she had been the victim of sexual abuse (see paragraph 11 above). Such delays are incompatible with the requirements of a prompt investigation in cases of allegations of child abuse (see, mutatis mutandis, R.I.P. and D.L.P. v. Romania, no. 27782/10, §§ 61-63, 10 May 2012).

34.  The Court notes that the first forensic report was issued on 2 October 2020 – that is, more than a year and a half after the allegations of child sexual abuse were first made – by a commission of three specialists, one of whom was a child psychiatrist. That report questioned the credibility of the second applicant on the basis of her examination in the presence of the alleged perpetrator, her father, noting that “she [had] bec[o]me anxious, [had been] in obvious difficulty and [had] started to cry, abandoning her previous statements in front of the members of the commission”. In this respect, it must be noted that no explanation was given by the authorities as to the necessity of the presence of the applicant’s father or its impact on the applicant. The Court recalls that the necessity of a confrontation must be carefully weighed up by the authorities, and that the victim’s dignity and sensitivity must be considered and protected, since criminal proceedings concerning sexual offences are often conceived of as an ordeal by the victim, in particular in a case involving a minor (see Y. v. Slovenia, no. 41107/10, § 103, ECHR 2015 (extracts), and C. v. Romania, no. 47358/20, § 85, 30 August 2022). The Court also notes that the second forensic report, issued on 6 August 2021, concluded that no signs of emotional abuse could be detected. Without questioning the second applicant’s credibility, the second report noted that she had indicated that her father often shouted at her and that she had witnessed him beating her mother, the report labelling such behaviour “inappropriate” and “clumsy”. Regarding the fact that the second applicant’s father was repeatedly naked in her presence, the report also considered such nudity to “[lack] any sexual connotation” and to constitute “a habit which was accepted in some parts of society [and was] common among less educated people” (see paragraph 16 above). Such findings, which are in stark contrast with those of the DGASPC (see paragraph 14 above), raise serious concerns about the apparent absence of (or lack of quality in) training centred on the needs of the children victims of such acts, which the respondent State is bound under its international obligations to provide to those of its professional personnel who deal in criminal proceedings with victims of violence (see M.Ș.D. v. Romania, no. 28935/21, § 147, 3 December 2024).

35.  The Court cannot replace the domestic authorities in the assessment of the facts of the case, nor can it decide on the alleged perpetrator’s criminal responsibility (see X and Others v. Bulgaria, cited above, § 186). Nevertheless, the Court observes that under the relevant international instruments, investigations and criminal proceedings should be carried out in a manner which protects the best interests and rights of children, such protection requiring the adoption of child-friendly and protective measures for child victims in criminal proceedings (see, for example, Article 35 of the Lanzarote Convention, which provides that the authorities are required to ensure that interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities, and that such interviews are carried out by professionals trained for that purpose (see R.B. v. Estonia, no. 22597/16, § 99, 22 June 2021). Such measures involve also protection from secondary victimisation.

36.  On the basis of the evidence before it and, in particular, of the significant flaws in the procedural response to the second applicant’s allegations (which flaws undermined the effective prosecution of child sexual abuse), the Court concludes that the investigation was neither prompt nor effective and that it was not conducted with the diligence required in criminal cases concerning child victims.

There has accordingly been a violation of Articles 3 and 8 of the Convention.

ALLEGED VIOLATION OF ARTICLES 3 AND 8 IN RESPECT OF THE THIRD APPLICANT

37.  The Court notes with respect to the third applicant that, despite the complaint made by his mother (the first applicant) in July 2018, a criminal investigation does not appear to have been conducted in respect of the violence allegedly inflicted on him by his father (see paragraph 3 above). While the first applicant was actively involved in the criminal investigations into the alleged abuse inflicted on her daughter, she does not appear to have reiterated before the prosecutor or the domestic courts her initial complaint regarding the third applicant.

38.  However, the first applicant was not inactive in respect of the allegations concerning the third applicant, as she reported repeatedly to the social services that the latter had been the victim of child abuse. Nevertheless, the relevant report issued by the DGASPC concluded that the third applicant did not show any signs of emotional abuse, despite noting that he had indicated that his father used to subject him to corporal punishment when he did something wrong (see paragraph 20 above). As a result, no further action was taken with respect to the third applicant, who continued to reside with his father.

39.  Given the nature and substance of the third applicant’s complaints, they fall to be examined under Articles 3 and 8 of the Convention (see paragraph 27 above).

40.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

41.  Referring to the general principles concerning States’ positive obligations under Articles 3 and 8 reiterated in paragraph 29 above and to the domestic and international provisions concerning children victims of corporal punishments (see, mutatis mutandis, D.M.D. v. Romania, no. 23022/13, §§ 21, 42 and 49-50, 3 October 2017), the Court notes with concern that, in its letter of 29 October 2020, the national agency responsible for the social protection of children informed the first applicant that disciplinary proceedings had been launched against several employees of the DGASPC because they had failed to conduct a proper evaluation of the first applicant’s allegations of child abuse in line with the legal requirements (paragraph 21 above). Nevertheless, the Court was not informed of any further measures in that regard. In this respect, the Court notes significant flaws in the procedural response of the competent authorities to the complaints concerning physical and emotional abuse of the third applicant, including a significant delay in conducting an interview with the third applicant after the facts have been reported (paragraph 20 above). As it was the case for the second applicant, the third applicant, who was 5 years old in July 2021, was also interviewed by a psychologist in the presence of the alleged perpetrator, his father (paragraphs 20 and 34 above). Despite the fact that the report noted that the third applicant had indicated that his father had subjected him to corporal punishment, the social services did not notify the police. The Court concludes therefore that the procedural response of the competent authorities was neither prompt nor effective and that it was not conducted with the diligence required in cases concerning child victims.

42.  The Court concludes that there has been a violation of Articles 3 and 8 of the Convention with respect to the third applicant.

THE COURT’S ASSESSMENT IN RESPECT OF THE FIRST APPLICANT

43.  The Government raised a preliminary objection concerning the first applicant’s victim status.

44.  In the present case, the first applicant alleged that the response of the national authorities to the allegations of child abuse regarding her two children had not been in compliance with the State’s obligations under Articles 3 and 8 of the Convention. Those complaints concerned the second and third applicants, who were represented by the first applicant. Having regard to the fact that – after lodging the present application and during the adversarial proceedings before the Court – the first applicant positioned herself only as the representative of the second and third applicants, the Court considers that she may be regarded as no longer wishing to pursue her own initial complaint, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto which require the continued examination of the application in so far as it concerns the first applicant.

45.  Accordingly, this part of the application should be struck out of the list.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

46.  The second and third applicants requested that the amount of the award in respect of non‑pecuniary damage be quantified by the Court.

47.  The Government submitted that no such award should be granted.

48.  The Court awards the second applicant 15,000 euros in respect of non‑pecuniary damage, plus any tax that may be chargeable. The Court also awards the third applicant 10,000 euros in respect of non-pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to strike the application out of its list of cases, in so far as it concerns the first applicant;Declares the remaining part of the application admissible, in so far as it concerns the second and third applicants;Holds that there has been a violation of Articles 3 and 8 of the Convention;Holds  that the respondent State is to pay the second applicant, within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;  that the respondent State is to pay the third applicant, within three months, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 16 June 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Valentin Nicolescu Ana Maria Guerra Martins
 Acting Deputy Registrar President

 

APPENDIX

List of applicants:

No.

Applicant’s name

Year of birth

Nationality

1.

M. S.

1977

Romanian

2.

S. S.

2010

Romanian

3.

T. S.

2016

Romanian

 

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