CASE OF M. AND C. v. ROMANIA
Violation of Art. 3 (procedural aspect);Violation of Art. 8;No violation of Art. 8;No violation of Art. 14+6;Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
5. The applicants are mother and son. They were born in 1965 and 1994 respectively and live in Saint-Priest, France. 6. In a letter bearing the Bucharest Post Office’s stamp of 5 November 2004 and received by the Court on 17 November 2004, Ms M. complained, inter alia, of violations of her and her son’s rights under Articles 3 and 8 of the Convention in respect of criminal proceedings which ended by a final judgment of 18 March 2004. 7. By letter of 19 December 2005 the Court asked Ms M. to state clearly whether the complaint under Article 3 of the Convention was also raised on her behalf. 8. By letter of 1 March 2006 Ms M. confirmed the receipt of the Court’s letter of 19 December 2005 and, without referring to any particular articles of the Convention, stated that she complained only on her son’s behalf. 9. Ms M. and D.C. were married on 27 November 1991. A.C., the couple’s only child, was born on 7 August 1994. 10. On 16 December 1994, Ms M. filed for divorce from D.C., citing her husband’s volatile and violent nature as the chief ground for divorce. She also asked to be granted full custody of their son. By a judgment of 10 February 1995, the Bucharest District Court allowed the claims and granted Ms M. full custody of the second applicant. D.C. was obliged to pay monthly maintenance until the second applicant became an adult. 11. Following an application by D.C. for custody of the second applicant to be reconsidered and granted to him, on 21 January 1998 the Bucharest District Court dismissed the claim. The judgment was upheld on appeal, the Bucharest County Court holding on 18 September 1998 that the father had proved: “to have had and to still have a violent nature and an uncivilised attitude, provoking situations when visiting his child which are likely to negatively influence the child’s physical and psychological development.” 12. D.C. also applied to the courts for contact rights with the second applicant on the first and third weekends of each month from 10 a.m. on Saturday until 7 p.m. on Sunday, as well as for thirty days during his annual leave. The request was granted on 8 June 1998 by the Bucharest District Court, having in mind the best interests of the child and the fact that his mother “did not oppose the request”. Ms M. lodged an appeal, claiming that she had not been lawfully summoned and therefore that she had not had knowledge of the hearing. On an unspecified date, her appeal was dismissed for a procedural error; the judgment thus became final. 13. Ms M. contested the enforcement of this judgment, essentially relying on the existence of criminal complaints lodged by her against D.C., accusing him of having molested the child (see section B below). The Bucharest District Court dismissed her application on 29 September 2000. She appealed against this judgment, and on 7 May 2001 the proceedings were stayed until a final decision was given in the proceedings concerning the limitation of D.C.’s visiting rights (described below in section C). 14. On 25 March 2004, D.C. asked for the stay to be lifted. The appeal was dismissed on 26 April 2004, as the main objections to the enforcement formulated by Ms M. had been clarified within the concluded criminal and civil proceedings respectively (described below in sections B and C). 15. Ms M. appealed on points of law. The appeal was dismissed by the Bucharest Court of Appeal on 1 June 2005. The court held that her argument that the enforcement of the disputed judgment would affect the child’s fundamental rights was unfounded, relying mainly on the judgment of 18 March 2004 which had confirmed the prosecutor’s decision not to indict D.C.. 16. On 11 August 1998, at Ms M.’s request, the Child Protection Commission for the Third District, Bucharest decided that the second applicant should be temporarily placed in a state institution, “as it had been proved that the child’s development, security and moral integrity were being endangered by his biological father.” 17. The child was placed in Placement Centre no. 7, Third District, Bucharest. 18. The above-mentioned decision was amended on 8 June 1999, following a reassessment of the case file that the Commission made of its own motion. The Commission considered that the protection measures already undertaken ought to be maintained as, according to information provided by the police, the child had been sexually molested by his father, and consequently a criminal investigation was under way. Both parents were allowed to visit the child once a week, but neither of them had the right to take the child to their home from Placement Centre no. 1, to which he had been transferred. 19. On 27 October 1998, Ms M. lodged a complaint, requesting that the Bucharest Third District Child Protection Commission institute civil proceedings to have D.C. stripped of his parental rights. The request was rejected by the Commission on 25 November 1998, as “the necessary legal conditions for such proceedings to be instituted [had] not been fulfilled”. 20. On 21 September 1999 Ms M. asked the Commission to revoke the placement measure and to order the second applicant’s reintegration into his family. By a decision of 5 October 1999, the Commission allowed the request and ordered that the second applicant should henceforth reside with his mother. 21. On an unspecified date in 1999 Ms M. lodged a civil action, seeking to obtain an increase in the monthly maintenance paid by D.C., as both the second applicant’s needs and D.C.’s income had increased. Ms M. also requested that D.C.’s contact rights should be limited so that the second applicant would only spend time with his father in her presence. In support of her latter request, the first applicant alleged that “[his] father was a real danger to the health and physical integrity of the child”, that D.C.’s verbal and non-verbal behaviour was highly aggressive, and that she had already lodged a criminal complaint against D.C., accusing him of sexually molesting the second applicant. She asserted that due to D.C.’s general behaviour she had been forced to temporarily ask for the second applicant to be placed in a state institution, where he would be protected from any possible aggression from his father. 22. An opinion on the relationship between the second applicant and his father given by E.M., Head of the Social Services Department of the Third District’s municipal administration, was added to the case file. E.M. stated that she had known the child from the time when he had been temporarily placed in Placement Centre no. 1, as she had been the manager of the centre at the time. Her remarks are essentially focused on the positive and natural link between D.C. and his child, who: “has an explosion of joy when seeing his father [...]; after the mother’s visits to the centre, the child became irritable, disobedient, using reprehensible words in connection to his father [...] the audio tape attesting to the so-called sexual abuse is proof of answers being induced from the child, the mother having made a significant contribution regarding the child’s attitude towards his father. Only when [his] father appeared did the child forget whatever his mother had induced him to feel (due to the joy he felt when meeting his father), which is clear proof that D.C. had not attacked the child, not only sexually, but not even verbally or in any other way.” 23. On 1 June 2000 the Bucharest District Court allowed the request with respect to the child maintenance increase; the request for limitation of contact rights was dismissed, the court taking into account the fact that the prosecutor had decided on 3 March 2000 not to institute criminal proceedings against D.C. and to close the investigation (see paragraph 39, below). An appeal by Ms M. was dismissed on 11 December 2000 as timebarred. A further appeal on points of law was also dismissed on 27 April 2001 by the Bucharest Court of Appeal. 24. On 21 June 2001, D.C. reapplied for full custody of the second applicant. He stated that he had not been allowed to visit his son, and that even though the first applicant had lodged a criminal complaint against him, the prosecutor had issued a decision not to indict him for sexually abusing the child. At the same time, D.C. asserted that the first applicant was a member of the Jehovah’s Witnesses, and that therefore her influence on the child endangered his normal development. Ms M. replied that the prosecutor’s decision not to press charges against D.C. had been confirmed and a criminal investigation was still pending. The action was dismissed on 20 December 2001 by the Bucharest District Court. The court held that the reasons relied upon by D.C. with respect to the first applicant’s religion were not to be taken into consideration. It also considered that the reasons which substantiated the court’s previous decision to grant full custody to the first applicant had not changed in any way. The decision became final. 25. On 26 July 2002, D.C. lodged a request with the Bucharest Third District Child Protection Commission, asking it to order the urgent placement of the second applicant in a state institution. He alleged that he did not have any information regarding the current home of the applicants, as they had continually and frequently changed their place of residence, and consequently no information on the second applicant’s well-being was available to him. The request was denied on 17 September 2002, as it had not been proved that the second applicant was in any danger. 26. On 30 July 2002, by means of interlocutory proceedings, D.C. sought full custody of the second applicant, giving as a reason that “it is dangerous for the child to stay close to his mother, as even though she is a caring mother, she still has a bad influence on the minor’s later development”. He also cited the fact that in 1998 the first applicant had lodged a criminal complaint, accusing him of having molested the second applicant. D.C. alleged that ever since that time he had constantly been prevented from visiting his son, who in any case had radically changed his whole attitude towards him, refusing contact. 27. The request was dismissed as inadmissible on 30 October 2002, the Bucharest District Court holding that the parties’ obvious and serious conflicts could not be settled within such expeditious proceedings. The judgment became final on 13 December 2002, the Bucharest District Court ruling an appeal on points of law brought by D.C. inadmissible. 28. On 14 July 1998, Ms M. lodged a criminal complaint against D.C., alleging that “the child had related to her that on 4 July 1998, when visiting his father, the latter had attempted to commit acts of sexual perversion with him”. The second applicant was three years and eleven months old at the time. 29. A medical certificate issued on 6 July 1998 by the Institute of Forensic Medicine attested to the following: “... the anal mucous membrane reveals a bleeding longitudinal fissure of 1.5 by 0.1 cm. [...] The child, A.C., has a traumatic lesion in the anal area, which could have been produced in the circumstances of a sexual assault. Healing requires two to three days of medical care.” 30. No civil claims were lodged. 31. According to Ms M., a second criminal complaint was lodged on 10 August 1998 regarding similar sexual acts perpetrated between 2 and 9 August 1998, when the second applicant was visiting his father. However, a copy of this complaint was not submitted to the Court. 32. The first applicant, D.C. and other witnesses were heard. Two witnesses, B.G. and S.F., informed the authorities, inter alia, that they had been told by the second applicant that he had been sexually assaulted by his father. Moreover, they had witnessed D.C.’s violent behaviour towards Ms M. and had seen the minor undressing and touching other children in an inappropriate manner. However, another witness, C.A., stated that she had never heard the second applicant complaining of sexual assault. On 26 August 1998 a medical report was produced by the Institute of Forensic Medicine, attesting as follows: “A.C. has recent and old lesions in the anal area, which could be the result of the intromission of a solid object or a consequence of anal sexual contact. It is possible that the lesions occurred on 5-7 August 1998. Two to three days of medical care are required for healing.” 33. On 20 July 1998 the minor was subjected to a psychological examination, which concluded as follows: “... the results of the projective tests emphasise the possibility that A.C., aged three years and eleven months, could have been sexually abused.” 34. A forensic report concerning simulated behaviour was produced on 23 November 1998, both Ms M. and D.C. being subjected to a test and asked various questions. According to the conclusions of the report, indicators of dissimulation were detected when Ms M. answered the following relevant questions (three out of the total of ten asked): whether she had set up the sexual assault on the child; whether she had been taught by somebody else to frame someone for the sexual assault perpetrated on the child; whether she had obliged or urged somebody to introduce an object into her child’s anus. 35. At the same time, the conclusions of the report showed that D.C.’s attitude seemed to be sincere when he answered ten questions, the relevant ones being: whether he had had anal sexual intercourse with his child; whether he had molested the minor between 2 and 8 August 1998 or on 4 July 1998; and whether he had ever thought about having unusual sexual relations. 36. Upon a request from the police, a new medical report was produced on 22 March 1999 by the same Institute of Forensic Medicine, concluding as follows: “We reassert our opinion that the child, A.C., displayed a traumatic lesion in the anal region, which could have occurred in the circumstances of a sexual assault, for which he needed two to three days of medical care for healing. The lesion could have been one to two days old at the time of examination, which means that it could have been produced on 4 July 1998.” 37. On 8 June 1999, Bucharest Police Station no. 15, investigating the case, sent an official note to the Child Protection Department for the Third District, Bucharest, asking them to ensure the permanent safety of the child until the investigation was terminated, in so far as neither of the parents nor any other person was to be allowed to take the child from the Placement Centre, because: “... the evidence already adduced in the case shows that the child had been sexually abused.” 38. On 15 June 1999 the second applicant was heard by the police in the presence of his mother, a psychologist and a lawyer who had been automatically appointed. From the second applicant’s answers to the questions asked by the police, it emerged that: “He likes to live with his mother and with his father [...] and that his father had put a hose into his bottom.” 39. On 3 March 2000, the prosecutor decided not to indict D.C. for the crime proscribed by Article 200 §§ 2 and 3 of the Romanian Criminal Code (sexual intercourse with a person of the same sex). As there were indications of criminal acts of a sexual nature having been committed, the case was split in so far as a further investigation was to be undertaken with a view to identifying the perpetrator. 40. This decision, challenged by Ms M., was confirmed by the hierarchically superior Prosecutor’s Office on 22 May 2000. 41. The prosecutor held that some of the witness statements were hearsay, as most of the witnesses had stated what they had heard and found out from the second applicant himself, who was around four at the time, being therefore unable to accurately depict reality. 42. Considering that the forensic report had proved that Ms M.’s answers indicated distortions typical of dissimulation, whereas no such indicators had been revealed from the answers given by D.C., the recommended conclusion was to consider that the first applicant was dissimulating: “... due to the existing conflicts as regards the child’s custody and due to the applicant’s selfish affection for the child.” 43. Ms M. again contested this decision. A psychological report completed on 26 June 2000 and issued by M.M., a neuropsychiatrist, was submitted to the file by Ms M. It showed that the child: “... had a permanent state of anxiety in connection with his own body [...] phobia and feelings of culpability in connection with the human body were revealed [...] we conclude that the child had been subjected to long and intense stress, stress connected with physical handling of a sexual nature – possible repeated paternal sexual abuse [...] diagnosis: reactive state (sexually abused by the father).” 44. On 21 September 2000, the hierarchically superior prosecutor quashed the decision and proposed that further investigation of the case should be carried out with respect to acts under Article 200 §§ 2 and 3 of the Romanian Criminal Code, consequently remitting the file to the Bucharest Prosecutor’s Office. 45. The decision was taken having the following in mind: “... the medical report’s conclusions are corroborated by those of the psychological examinations of the child, who was shown to have exhibited behaviour typical of those who have been subjected to sexual abuse”; and that “... there is no indication of the existence of any other person than the father, D.C., who could have committed the impugned acts.” 46. After the remittal of the case, no other new evidence was produced or adduced to the file. On 16 July 2003, the prosecutor again decided not to press charges against D.C. in respect of the acts punishable by the Romanian Criminal Code under Article 200 §§ 2 and 3 and Article 201 (acts of sexual perversion). The decision was founded on the evidence already existing in the file (the medical certificate of 6 July 1998, the medical report of 26 August 1998, statements gathered in the case, the parties’ arguments and the forensic report on simulated behaviour). 47. On 9 September 2003 Ms M. contested this decision, mainly arguing that in spite of the indications given by the hierarchically superior prosecutor on 21 September 2000 that the investigation should continue, no new evidence had been produced in the two years that had since passed and therefore that the decision was unsubstantiated. 48. Her objection was sent from the hierarchically superior prosecutor to the Bucharest District Court. The Prosecutor’s Office raised a plea of inadmissibility of such an objection, as the Romanian Code of Criminal Procedure did not expressly provide for the possibility of parties contesting a prosecutor’s decision not to press charges before the courts. 49. The first applicant replied by submitting jurisprudential arguments, including a decision of the Romanian Constitutional Court issued on 2 December 1997 stating that not providing the parties with such an opportunity was unconstitutional. The first applicant also relied upon the adoption of a new Law (no. 281/2003) amending old regulations and providing the parties with the possibility of appealing against such decisions to the courts within one year of its entering into force (on 1 July 2003). 50. On 13 October 2003, the court dismissed Ms M.’s appeal. In its judgment, the court made reference to the decision of 16 April 2002 (see C below) and to the reasoning therein. At the same time, it held as follows: “Because no matter how many witnesses had been heard in the case it could not have been established for certain whether the truth lay with the applicant or with D.C., it was necessary to test the two with a polygraph. Following the test, it was established that the applicant was dissimulating, whereas D.C. proved to have been sincere when answering the questions asked.” 51. When referring to the second applicant’s statements given on 15 June 1999, the court considered that these were: “... a faithful reflection of the mother’s opinions on the matter, the child’s assertions being very structured, similar to those made by an adult, although the child was five years old at the time. The child tried to expose his mother’s thoughts as accurately as possible but, at the same time, he attempted to express his own feelings when he pointed out that he liked to live with his father as well.” 52. Consequently, the court held that the existing evidence could not be regarded as reliable enough to indict D.C. for the alleged crimes, in view of the conclusions of the lie-detector test (considered to be 98% accurate), of all of the reports and of the witnesses’ statements. 53. The court further emphasised the fact that the second applicant had asserted that his father “had only inserted a hose in his bottom and asked him not to tell his mother anything about it”, which would: “... constitute at the most a criminal act under Article 180 § 1 of the Criminal Code (hitting or other forms of violence), stating that a criminal case shall be initiated upon the complaint of the person injured.” 54. The court made no reference to the initiation on its own motion of a criminal investigation for criminal acts under Article 180 § 1 of the Criminal Code. 55. Ms M. appealed against this judgment. The Bucharest County Court dismissed the appeal and reiterated the reasoning of the lower court quoted above. It held on 18 March 2004 that no evidence in the file had proved that the second applicant had actually been a victim of sexual assault perpetrated by his father and therefore that there was no indication in the file to justify a prosecution being instituted against D.C. for criminal acts punishable under Article 200 §§ 2 and 3 and Article 201 of the Criminal Code. 56. On 2 May 2001 Ms M. lodged a civil action, seeking to confine D.C. to a contact programme of two visits a month and only in her presence. In support of her claims, she alleged that D.C. had abused his contact rights when, in July and August 1998, upon taking the child to his home, he had molested the child. She revealed that she had lodged a criminal complaint against D.C. in this regard, but that on 3 March 2000 the prosecutor had decided not to indict him. Also, a similar civil action had previously been lodged by her, but her claims had been dismissed on 1 June 2000, the courts’ reasoning relying exclusively on the prosecutor’s decision not to institute criminal proceedings against D.C. 57. D.C. asserted that ever since his former wife had left him he had had to struggle in the courts in order to be able to see his son, as she had done everything possible to keep him from having any contact with his son. In that respect, he had even had to lodge a criminal complaint against her, as she was not complying with the court order allowing him to see his son. Even though she had never been indicted, she had allegedly received an administrative sanction. After the incidents that had allegedly occurred in the summer of 1998, he had not been allowed to see his son, as the first applicant had continually moved home without informing him. 58. Mindful of the serious allegations submitted by the parties and what was at stake for the child, the court – at a preliminary stage – considered it necessary for both of the parents to be subjected to a polygraph test and also to undergo psychiatric examination. At the same time, the court found it appropriate to hear the second applicant, even though he was less than eight years old. All discussions with the child were audio taped, and, as is stated in the judgment of the Bucharest District Court given on 16 April 2002, “the transcriptions were to be included in the case file”. 59. Ms M.’s application was dismissed, the reasoning of the court being essentially the following. 60. Firstly, the court observed, on the basis of the parties’ past, which had been hostile and which had been partially played out in court, that Ms M.’s intention to limit D.C.’s contact rights had been constant over the years and had started long before the alleged incidents of July and August 1998. As had emerged from all the documents included in the case file, the first applicant had actually intended to completely prevent D.C. from having any contact with his son. The court found that this background showed that her present application had not come as a consequence of the alleged sexual assault, but rather as a predictable consequence of her consistent and strong determination to put an end to any kind of relationship between the second applicant and his father. The following had emerged: “... the applicant was constantly preoccupied with estranging the child from his father and the real reason for that was not the reason presented by Ms M. in the file, but, without doubt, one that had a religious subtext, as will be subsequently demonstrated.” 61. Relying on the testimonial evidence and the parties’ statements in the file (including the second applicant’s), the court held that the real reason for the parties’ divorce was in fact the exclusion of D.C. from the Jehovah’s Witnesses Congregation on 13 January 1995: “... the withdrawal of the defendant from the Jehovah’s Witnesses prompted the applicant to firstly leave him, and then, after having waited for a while for the “lost sheep to rejoin the flock”, to finally divorce.” In this context, “... it is irrelevant that the defendant had behaved violently towards the applicant – as the main and essential reason for the parties’ divorce was a religious one, namely the defendant’s withdrawal from the sect of the Jehovah’s Witnesses [...] the violent behaviour of the applicant playing a subsidiary role.” 62. The court further held that “it is notorious that the members of the Jehovah’s Witnesses sect marry only within the Congregation”, and if, after getting married, one of the members grows distant from the religion, and attempts to bring him back into the fold are unsuccessful, a divorce becomes even more necessary. Consequently, the court considered that Ms M. had sought to take the following into consideration: “... she has a duty to the child, but also to God, to protect the child from any influence that would jeopardise his soul and his spiritual growth, including influences from his father, if not from his father in the first place [...] [I]t emerges that it was imperative that the defendant should be prevented from having any contact with the child. Although simple and clear, [the achievement of] this desired goal seemed to be undermined by an insurmountable obstacle – the law, which allows the parent without custody to continue to have personal contact with the child [...] [T]he applicant, pragmatic, set herself a more modest goal, appreciated as legally possible – the limitation of the father’s visiting rights by a court judgment [issued] in the preliminary stage [of proceedings], followed by a second step, which was to attempt in any way or by any possible stratagem to completely forbid the defendant to enforce the judgment in respect of contact with the child.” The court further held as follows: “... based on the evidence produced in the file, it cannot be established with certainty whether the applicant has herself caused the injuries to the child attested in the medical reports, but such a possibility cannot be completely excluded.” In supporting such a hypothesis, the court considered as follows: “... it could be presumed that around 1 July 1998, when D.C. went to the applicant, [armed] with an enforceable judgment (of 8 June 1998), intending to see his child, the applicant, taken by surprise, desperate, decided to resort to this extreme solution, telling herself, in order to comfort her own conscience, that a good purpose (saving the soul of the child from “Satan’s claws”) justified the means (the committal of - at least - one criminal act – defamatory denunciation against the defendant).” A second hypothesis explaining the minor’s injuries was advanced by the court: “... it is quite possible that the attested injury could have been the consequence of acute constipation on the part of the minor, and that the applicant simply took advantage of the circumstances and lodged a request to deprive the defendant of his parental rights.” 63. In any case, the court seemed to favour the first hypothesis, relying on the chronology of the events which had allegedly occurred in the summer of 1998, as the first applicant had herself taken the initiative at that time to allow D.C. to take the second applicant to his home for a longer period of time than that established in the judgment regulating his contact rights (a few days). The first applicant’s explanation that she had acted in that way because she had previously been threatened with death by D.C. and because she had been advised by the police to comply with the court order allowing D.C. contact rights was considered insincere. 64. The court concluded that the first applicant’s initiative of giving the second applicant to his father was part of a bigger plan, arranging the set-up prepared for D.C. 65. The polygraph test and the psychiatric report regarding the parties, as well as the psychological evaluation of the second applicant’s answers to the court’s questions, were never pursued: “... after consultation, both the president of the court and the forensic expert reached the conclusion that the applicant could have been one of the few persons who could “defeat” even the polygraph.” 66. The president of the court consequently decided to try to make the applicant aware of her wrongdoing – in the event that the accusations against D.C. were, indeed, unfounded – and he therefore invited the first applicant and the second applicant to a meeting at the court. 67. Following the meeting held at an unspecified date in 2002, the applicant, through her lawyer, imposed “some unacceptable and unspeakable conditions” to be fulfilled when performing the polygraph test. As this means of evidence was not, as such, provided for in Romanian procedural legislation, the court “was forced” to conclude that the test could not be administered: “The court assesses these conditions as being a disguised and diplomatic refusal by the applicant to take the test, and such a refusal leads to the conclusion that it is highly possible that the applicant wrongly accused the defendant, D.C.” 68. As similar “unreasonable and impossible conditions” were formulated by the first applicant’s lawyer for the evaluation of the second applicant’s previous answers (for instance, the child was to be recorded throughout so that the first applicant could, if necessary, express a point of view), the court felt obliged to acknowledge that the first applicant was resistant to such a means of acquiring evidence, and the evaluation was never pursued. 69. However, the court had several separate discussions with the second applicant, who, when questioned, stated, inter alia, as follows: “... his father left the religious organisation before he was even born, because “Satan had grabbed him”, and that “... he did not play much with the neighbour’s children, as they were not “witnesses”, and therefore they were bad”. The court also held that: “The child asserted that he had been molested by his father, who had threatened to kill him if he revealed anything of the incident to his mother (recorded statement). [...] The child had indeed stated to the President of the court that he did not wish to see his father.” 70. The second applicant’s statements were not, however, taken into consideration by the court, as the court was convinced that all of them had in fact been induced by his mother, and did not reveal the child’s real thoughts and wishes: “... to any minor between the age of four and seven years, a parent or a teacher who is close to the child could easily inculcate any ideas...” Consequently, the court found: “... a child will immediately and without reserve accept that a situation has actually occurred as inculcated, even if he himself has no recollection of such a situation.” 71. Relying on all the evidence and the presumptions drawn from the first applicant’s refusal to allow new evidence (reports) to be collected, the court held as follows: “... the court knows that the applicant never actually wanted the defendant to be able to see the child, and to this end she went as far as to disobey a previous court order (the judgment of 8 June 1998). It only remains for the prosecutor to remove any doubt as to this matter (the criminal complaint lodged by the applicant), so that the applicant can then be brought before a court for resisting the enforcement of the judgment of 8 June 1998... [...] If a psychiatric report had ever been produced, the court would have found out whether the applicant was or was not suffering from a “split personality syndrome” [...] because the applicant leaves the impression of having a double personality, between the two parts of which there is no communication whatsoever...” [...] Therefore, it is the defendant who seems more entitled to ask that the mother should be deprived of her parental rights.” 72. Ms M. challenged the above-mentioned decision, essentially alleging that: the court had used and interpreted the second applicant’s allegations, although they had had never been transcribed or attached to the case file; and the court had reasoned with a logic that had nothing to do with the case itself, but rather had been based on the judge’s own apparent obsessions, and which, in any case, did not rely on the documentary evidence adduced (medical reports, psychological evaluations of the child), which was all in support of the truth – that the second applicant had been sexually abused by his father. Documents attesting to the first applicant’s sane state of mind had also been ignored, the court preferring to believe that the first applicant had been suffering from “psychological deviations of a mystical nature”. In summary, the court had obviously disapproved of the applicant and had “treated her like a criminal because she was a member of the Christian sect of Jehovah’s Witnesses”, which organisation was in fact formally recognised in Romanian law. 73. In its judgment given on 20 December 2002 the court made a fresh assessment of all the evidence and tried to strike a balance between the importance of respecting the presumption of innocence favouring D.C., and the necessity of protecting the child’s best interests. 74. In doing so, the court held that until the defendant was found guilty by a final decision, he had to be considered innocent, and therefore he could not be denied his right to have a personal relationship with his son. However, it also determined the following: “... the principle of the child’s best interests must be kept in mind, especially as long as the possibility still exists that the child was molested by his father, an experience which would undoubtedly mark him psychologically for the rest of his life.” 75. The court therefore considered that until the criminal proceedings were over, the second applicant would be better protected if his father was only allowed to see him every first and third Sunday of the month, between 10 a.m. and 4 p.m., at the office of the first applicant’s legal representative. The first applicant was not to be present during these visits. 76. Both the first applicant and D.C. appealed against the decision of 20 December 2002 on points of law. Ms M. criticised the assessment of evidence made by the court, as all documents and testimonial evidence had attested that it was necessary that the first applicant should be present when D.C. spent time with the second applicant. 77. D.C. contested the judgment, alleging that the solution envisaged by the court had placed him in a position in which it was impossible to establish a personal relationship with his son; that the court had also disregarded the presumption of innocence operating in his favour, particularly given that the prosecutor had decided on 29 July 2003 not to indict him; and that the court had misinterpreted the notion of “best interests of the child”, which implied, per se, the existence of a relationship between a child and his father. 78. On 4 December 2003 Ms M.’s legal representative adduced documentary evidence to the effect that the prosecutor’s decision not to charge D.C. had been contested before the courts and that a criminal trial was pending. 79. On 5 February 2004 the Court of Appeal dismissed the appeal on points of law formulated by the first applicant against the Bucharest District Court’s judgment. It allowed D.C.’s appeal, quashed the judgment given on appeal by the Bucharest District Court and dismissed Ms M.’s appeal against the first-instance court’s decision. In doing so, the court held as follows: “... it did not emerge from any evidence in the file that the father had an aggressive attitude towards the child. It has been shown with certainty that the conflict had ignited between the two parents and in the end it lead to their divorce. The mother’s bad faith was evident, having in mind the conclusions of the forensic report attesting to dissimulation on her part. According to the testimonial and expert evidence available in the file, the rare meetings between father and son had been normal and the child was happy every time he met his father. Moreover, the fact that the father was unable to see his son anymore following the child’s reunification with his mother as a result of the mother’s refusal to accept the enforcement of a final judgment allowing contact rights for the father cannot be ignored either. The applicable legal provisions provide for the right of the divorced parent who has not been entrusted custody of the child to preserve personal ties with the child.” [...] “... when dismissing the appeal on points of law, the court also had in mind the prosecutor’s decision of 29 July 2003 not to institute criminal proceedings against D.C. and the best interests of the child in respect of preserving personal ties with his father.” 80. On 5 July 1995, Ms M. lodged a criminal complaint against D.C., accusing him of having hit her, threatened to kill her and slandered her when coming out of a court hearing regarding his contact rights. The evidence produced in the file included two documents attesting that D.C. had already been fined for disturbing the public order at the child’s kindergarten and at their home. The Bucharest District Court held that D.C. had committed the unlawful acts alleged and sentenced him to six months’ imprisonment and fined him, penalties imposed by law. Under the civil head of the first applicant’s claim, D.C. was ordered to pay the appropriate pecuniary and non-pecuniary compensation to the first applicant. The decision was appealed against by D.C. The appeal was dismissed on 4 December 1998 by the Bucharest District Court. The court held that the sanctions imposed had been appropriate, as the victim had been shown to have been living in fear, the defendant’s aggressive behaviour forcing her to repeatedly change her and the second applicant’s domicile. 81. On 18 December 1996, Ms M.’s sister, R.C., lodged a criminal complaint against D.C., alleging that she had been hit and insulted by him. She submitted a medical certificate attesting to wounds and injuries requiring fourteen to fifteen days to heal. The court found D.C. guilty as charged, as he had “proved to be highly destructive and aggressive, behaving very violently”. D.C. was sentenced to one year of imprisonment and a criminal fine, both penalties being imposed by law. The victim was awarded pecuniary and non-pecuniary damage. An appeal by D.C. was allowed by the Bucharest District Court on 27 January 1999, which sentenced him to three months’ imprisonment and a criminal fine, penalties imposed by law. 82. Following a criminal complaint lodged by the Jehovah’s Witnesses Congregation on 12 March 1997, D.C. was convicted of criminal damage by the Bucharest District Court and ordered to pay both a criminal fine (amenda penală) and the civil damages claimed by the Congregation. The judgment became final after an appeal lodged by D.C. was dismissed on 18 July 1997. 83. The relevant provisions with respect to custody rights and family issues are to be found in R.R. v. Romania (I) (dec.), no. 1188/05, 12 February 2008. 84. Section 97 of the Romanian Family Code provides for the fundamental equality of spouses as regards parental rights and responsibilities and makes it clear that the interests of children are paramount. 85. The relevant provisions of the Romanian Criminal Code are worded as follows: “(1) Injuries or any other violent actions which cause physical pain are subject to imprisonment of between one and three months or a fine. [...] (3) A criminal case shall be initiated upon a complaint by the injured party. In the event that the unlawful act has been committed by a family member, the criminal case may be initiated upon the authorities’ own motion. (4) Reconciliation by the parties removes criminal responsibility.” “(1) Sexual intercourse between persons of the same sex, carried out in public or having as its consequence 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 prohibition of certain rights. (3) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing a wish, or which is performed through coercion, is punishable by imprisonment of between three and ten years and prohibition of certain rights.” “(1) Acts of sexual perversion committed in public shall be punishable by imprisonment under stringent conditions of from one to five years. (2) Acts of sexual perversion involving a person under the age of fifteen shall be punished by imprisonment under stringent conditions of from three to ten years and the prohibition of certain rights. (3) The same penalty shall also sanction acts of sexual perversion involving a person aged fifteen to eighteen if the act is committed by a guardian or curator or by a person charged with his or her supervision or care, by a physician, teacher or professor or educator in that role, or if the perpetrator has abused the victim’s confidence or authority or influence over him or her.”