CASE OF T.M.V. v. ROMANIA

FOURTH SECTION

CASE OF T.M.V. v. ROMANIA

(Application no. 34426/20)

JUDGMENT
 

STRASBOURG

16 January 2024

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

In the case of T.M.V. v. Romania,

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

 Faris Vehabović, President,
 Anja Seibert-Fohr,
 Sebastian Răduleţu, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 34426/20) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 August 2020 by a Romanian national, T.M.V., born in 2013 and living in Baia Mare (“the applicant”) who was represented by Mr D.M. Marcu, a lawyer practising in Oradea;

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 applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 5 December 2023,

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

SUBJECT MATTER OF THE CASE

1.  On 6 December 2016 the applicant’s mother, M.M., divorced the applicant’s father, R.S.V. The applicant was placed with her mother and a contact schedule was set for her father.

2.  R.S.V. would collect the applicant from kindergarten, spend the day with her and then take her to her mother’s home.

3.  In the evening of 2 February 2017 M.M. observed a change in the applicant’s behaviour and vocabulary about her intimate body parts and noticed that her genitalia were irritated. When M.M. asked what had happened, the applicant, who was three years and two months old at that time, explained that her father had told her her genitalia were dirty and needed cleaning.

4.  Worried about the applicant’s behaviour in the following days, M.M. confronted R.S.V. who denied any abuse (see paragraph 14 below).

5.  At M.M.’s initiative, the applicant and her parents consulted two psychologists who issued their reports on 8 and 15 March 2017 respectively. They abstained from drawing any conclusion and recommended contacting the child protection authority (the Baia Mare Directorate General for Social Welfare and Child Protection) on suspicion of sexual abuse.

6.  On 8 March 2017 M.M. contacted the child protection authority which evaluated the applicant, interviewed the parents about the incident of 2 February 2017 and recommended notifying the police about the suspicion of sexual abuse.

7.  On 23 March 2017 M.M. asked the Baia Mare Police to be present at all visits between R.S.V. and the applicant because of the child’s reaction after such contacts. Interviewed on the same day by the police, R.S.V. opposed M.M.’s request. It appears M.M. received no answer to her request (see paragraph 31 below).

8.  On 10 April 2017 the child protection authority informed the police about the suspicion of sexual abuse (see paragraph 6 above).

9.  On 25 April 2017 M.M. lodged a criminal complaint with the prosecutor’s office attached to the Baia Mare District Court accusing R.S.V. of sexual aggression and sexual pressure against the applicant. She explained how, since 2 February 2017, the applicant’s behaviour had started to change and had become more sexualised after visits with her father.

10.  On 12 June 2017 the police started an investigation.

11.  On 19 June 2017, 16 November 2018, 20 December 2018 and 10 January 2019 M.M. asked the prosecutor to accelerate the investigation, reiterating the urgency of the matter.

12.  A psychological report rendered on 29 June 2017 upon request of the investigating authorities concluded that the applicant presented traumatic markers specific to sexual abuse, which were triggered only by R.S.V. No indications of abuse or alienation were identified in connection with M.M. or her new partner. The psychologist found that the applicant was unwilling to talk about R.S.V.

13.  Between 13 June 2017 and 12 June 2018, the police interviewed twelve witnesses including M.M., the applicant’s grandmothers and her nanny, the psychologists who had assessed her and a kindergarten assistant who had seen her with R.S.V. on 2 February 2017.

14.  On 19 February 2018 R.S.V., who just returned from an extended visit to his mother in the USA, was interviewed by the police. He explained that on 2 February 2017 the applicant had soiled herself at kindergarten and he had cleaned her first quickly in the toilet then properly in the shower, at his home. He submitted copies of photographs and video recordings they had made together on that day, showing that the applicant had been happy, dancing and singing with him.

15.  On 27 February 2019 the prosecutor decided to discontinue the investigation (clasarea) on the grounds that there was no evidence that R.S.V. had committed a crime. The prosecutor concluded that the acts performed by R.S.V. had been the normal gestures required for cleaning the applicant and could not be considered sexual abuse.

16.  On 12 June 2019 that decision was upheld by the deputy chief prosecutor of the prosecutor’s office attached to the Baia Mare District Court, on the same grounds.

17.  In a final decision of 17 October 2019, available to the parties on 3 December 2019, the Baia Mare District Court dismissed the objection lodged by M.M. It found that there was no “objective scientific” evidence supporting the allegations and that the psychological assessments did not unequivocally link the applicant’s sexualised behaviour to a sexual abuse. The court observed that the applicant was experiencing an emotionally difficult period following the parents’ separation, which could explain her behaviour. It thus concluded that the acts committed by R.S.V., namely washing the applicant, did not constitute a criminal offence.

18.  On 25 April 2017, 13 December 2017 and 11 April 2018 M.M. applied to the District Court for protection orders for the applicant, to help her psychological recovery, prevent R.S.V. from aggravating her state, and help the criminal investigation.

19.  The first two requests were initially dismissed by the Baia Mare District Court on 28 April and 14 December 2017.

20.  Upon appeal by M.M., on 14 June 2017 and 17 January 2018 respectively two consecutive protection orders were issued by the Maramureş County Court on the grounds that as long as there was suspicion, as indicated by the evidence administered in the ongoing criminal investigation, that R.S.V. had sexually abused the applicant, it was in the latter’s best interest to avoid contact, in order to prevent irremediable psychiatric trauma and to allow her to calm down and “modify her sexualised behaviour”. The courts also considered that the contact limitation would help identify the source of her behaviour, which would benefit the ongoing criminal investigation. R.S.V. was also ordered to undergo psychological counselling. The last order was valid until 16 April 2018.

R.S.V. was prevented from seeing the applicant from 14 June 2017 to 16 April 2018.

21.  From 5 February to 6 April 2018 R.S.V. underwent a psychological evaluation as ordered by the above decisions. The report of 10 April 2018 concluded that the possibility for R.S.V. to have sexually abused his daughter or to be predisposed to such behaviour was unfounded and unrealistic.

22.  On 13 April 2018, during the proceedings for the third protection order, the applicant was interviewed by the judge of the Baia Mare District Court, in the presence of the prosecutor and a new psychologist of the child protection authority. The applicant identified S.G.O., her mother’s new husband, as her father. She then stated that she recalled R.S.V., that she still loved and missed him, that she wanted to play with him and that she expected him to bring her gifts. She further stated that R.S.V. had never upset her. The court took account of the expert psychological evaluation of R.S.V. (see paragraph 21 above) and further noted that he had not been in contact with the applicant after the second protection order.

23.  On 13 April 2018 the Baia Mare District Court dismissed the request for another protection order on the grounds that there was no evidence that R.S.V. represented a danger for the applicant and that there was no evidence that R.S.V. had committed violent acts during the period when the protection orders where in force.

24.  M.M. appealed, arguing that extending the prohibition was in the child’s interest, that R.S.V. had observed the previous orders because he had been out of the country, but that he had meanwhile returned (see paragraph 14 above). R.S.V. replied arguing that he had complied with the court order and had undergone psychological counselling, and that since his return to the country he had not contacted the applicant or her family.

25.  The decision was upheld by a final decision of 18 May 2018 of the Maramureş County Court.

26.  The court considered that the previous protection orders had been issued not because of evidence that R.S.V. had molested the applicant, but rather to protect the latter’s mental health (starea psihică) as at that time she had exhibited traumatic reactions in connection with her father. It further found that M.M. had failed to offer the applicant psychological counselling, which was, according to the court, the only method to verify whether R.S.V. was the trigger in the applicant’s sexualised behaviour.

27.  The court considered that the outcome of the criminal investigation could not contribute “to healing” the applicant and therefore, the fact that that investigation was ongoing could not justify issuing another protection order.

28.  M.M. should instead have requested either to change the contact schedule or request supervised visits, which would have been better methods of protecting the applicant from her father. It further stated that a child’s interest was to maintain contact with both parents and concluded that a new protection order would not serve that interest.

29.  On 26 April 2017 M.M. had requested by way of interim proceedings a change in the contact schedule between the applicant and R.S.V. On 11 May 2017 the District Court dismissed the request, on the ground that M.M. had failed to prove that R.S.V. had sexually abused the applicant and that there were no circumstances warrant changing the contact schedule. The appeal lodged by M.M. was dismissed on 21 July 2017 by the County Court for the same reasons.

30.  On 1 January 2019 M.M. requested in the interim exclusive exercise of parental authority and a new, reduced contact schedule under the supervision of the child protection authority. On 5 February 2019 the District Court dismissed the requests. The court considered that the evidence did not prove with certainty that the applicant had been sexually abused, and that there was nothing to incriminate R.S.V. It also stated that the two protection orders had been issued preventively and were not based on evidence of wrongdoing by R.S.V.

31.  It appears that after the incident of 2 February 2017, R.S.V. saw the applicant sporadically and only in M.M.’s presence.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION

32.  The applicant complained about the authorities’ response to the allegations of sexual abuse and about the investigation into those allegations. Although she relied on Articles 3, 6 and 8 of the Convention, the Court will examine the complaint under Articles 3 and 8, together (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018; and V.C. v. Italy, no. 54227/14, §§ 83-87, 1 February 2018, D.M.D. v. Romania, no. 23022/13, § 52, 3 October 2017, and C.A.S. and C.S. v. Romania, no. 26692/05, § 62, 20 March 2012).

33.  At the outset, the Court notes that the application was lodged within the three-month extension to the time-limit set by Article 35 § 1 of the Convention, introduced by the decision of the President of the Court in 2020 as a consequence of the lockdown imposed in France on account of the SARS‑CoV-2 coronavirus pandemic (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022).

34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

35.  The general principles concerning the positive obligations inherent in Articles 3 and 8 to investigate domestic abuse committed by private individuals and to ensure respect for private life have been summarised in X and Others v. Bulgaria ([GC], no. 22457/16, §§ 176-92, 2 February 2021) and M.M.B. v. Slovakia (no. 6318/17, §§ 58-64, 26 November 2019).

36.  The Court will examine whether the measures taken by the authorities have been sufficient to protect the applicant from the alleged abuse and whether the mechanism put in place to protect alleged victims was properly implemented (see X and Others v. Bulgaria, §§ 179, 181, 184, and Buturugă v. Romania, no. 56867/15, §§ 61 and 65, 11 February 2020).

37.  While from 14 June 2017 to 16 April 2018 the courts granted protection orders for the applicant (see paragraph 20 above), after that date they denied a similar request without, however, making any reference to a new psychological assessment of the applicant. The District Court’s conclusion that the applicant was in no danger (see paragraph 23 above) was not reasoned with regard to the psychologists’ persistent suspicion of sexual abuse (see paragraphs 5, 6 and 12 above) and the finding of R.S.V. as the trigger for the applicant’s worrying behaviour (see paragraph 12 above). Furthermore, the County Court failed to explain why, after having earlier found that the applicant had exhibited “traumatic reactions in connection with her father” (see paragraph 26 above), the applicant’s mental health was no longer a concern warranting protection. In light of these finding, it would have been for the domestic authorities to investigate the grounds for these reactions instead of reproaching M.M. for not having provided the applicant with psychological counselling (see paragraph 26 above). The Court observes in this respect that neither the authorities in charge of the case (investigating and child protection authorities) nor the psychologists already involved had ordered or suggested such counselling.

38.  Moreover, the Court finds it difficult to accept the reasons provided by the Court of Appeal in dismissing the request for a protection order, namely that the pending criminal investigation had no relevance to the applicant’s “healing” (see paragraphs 18 and 27 above), and that M.M. had at her disposal better means of protecting her daughter (see paragraph 28 above), having regard to the fact that her requests for a modified contact schedule had already been denied (see paragraphs 29 and 30 above) and her request for supervised visits by the police remained unanswered (see paragraph 7 above). The applicant was left without protection for one and a half years during the criminal proceedings. The Court finds such delay excessive, having regard to the stakes for the applicant and her young age.

39.  The Court must also stress that, although the police became aware of the allegations of abuse as early as 23 March 2017 when contacted by M.M. (see paragraph 8 above), and on 10 April 2017 they received a further information from the child protection authority, and although a formal criminal complaint was lodged by the mother on 25 April 2017 (see paragraph 9 above), they waited two months before starting an investigation (see paragraph 10 above) and almost a year to interview R.S.V. (see paragraph 14 above), without any explanation for such delays. In addition, between the interview of R.S.V. on 19 February 2018 and the prosecutor’s decision to discontinue the proceedings on 27 February 2019, more than one year elapsed. No reason was provided for this delay. Throughout the whole procedure, M.M. repeatedly reiterated, to no avail, the urgency of the matter (see paragraph 11 above).

40.  Lastly, there is no indication that any measure has been taken or at least considered by the authorities actively to help the applicant overcome her condition, despite the fact that both the civil and criminal courts made reference to possible emotional difficulties in strong terms such as “healing” and “ traumatic reactions” in connection with the father (see paragraphs 17, 20, 26 and 27 above). For instance, neither she nor M.M., her principal carer, were offered counselling, and the child protection authority did not offer support to the family, including supervised visits.

41.  Consequently, the Court is not convinced that, faced with prima facie substantiated allegations of sexual abuse in respect of a very young child, the domestic authorities properly and efficiently assessed the child’s best interest. In their overall response, the domestic authorities did not comply with their positive obligations under Articles 3 and 8 of the Convention.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

43.  The applicant claimed 500,000 euros (EUR) in respect of non‑pecuniary damage and 14,344.54 Romanian Lei (approximately EUR 2,900) in respect of costs and expenses incurred before the Court.

44.  The Government contested the claims.

45.  The Court awards the applicant EUR 12,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

46.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,900 covering costs for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,900 (two thousand nine hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  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 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Crina Kaufman Faris Vehabović
 Acting Deputy Registrar President