Maia Bănărescu: Children and women should not be revictimized in court and those who reform justice sector should pay attention to this

Injustice in cases with a powerful emotional impact involving minors and women is resonant. These cases sensitize us as society, as community, but this does not yet happen in the courtroom where it seems that justice cannot be yet easily obtained. That’s why many victims go to the ECHR to have light shed in their cases. The ways in which the justice sector reform can reduce the number of cases of “injustice” were among the issues discussed in an IPN interview with Maia Bănărescu, Ombudswoman for Children’s Rights.

IPN: What is the figure of cases of injustice as share of the total cases featuring children, when minors are involved in trials but no justice is done?

Maia Bănărescu:
When a child is involved in a trial, children’s rights are violated. The procedure for examining these cases is very clear. If we speak about criminal cases, the child should be prepared before going to the courtroom. I refer to those interviews in which the minors are questioned in child-friendly conditions, in the presence of a psychologist. In the recent past, they have talked a lot about the status of the interviewer who must be very well trained, the appropriate conditions required. The abuser must not be present and the questions need to be formulated very clearly.

The children should not be taken again to court for clarifying particular issues. The professionalism and the diligence of the players that take part in the administration of justice are important. Justice is done not only by the judge. The process starts from the person who institutes criminal proceedings – police officers, prosecutors, lawyers, social assistants, tutelage authorities - and from their level of training. The children must have lawyers even if they are accompanied by parents as they don’t always know the procedures.

The tutelage authority should also formulate conclusions so that is not left to the discretion of the court. I refer to civil procedure cases, when the place of domicile is to be decided. In civil cases, the child is present in court. Even so, the minor should be questioned only once, while the judge should know the status of the child. In the absence of unified judicial practices, some of the judges can examine the child as a witness in the hearing to decide the domicile, while others – as a party to the trial.

IPN: What do statistics show?

Maia Bănărescu:
If we refer to statistics, there are about 60-70 children involved in criminal proceedings, who are either in remand detention or we already have over 30 children in Penitentiary No. 10 for  minors, who serve time there. We also have several tens of children who are under alternative punishment at home.

If we refer to civil cases, the figures are higher as the children can be part of other proceedings too. I consider the child should not reach court. If the judge decides to question the child to find out details, this should be done in a separate room, in friendly conditions, without putting on the gown, and with the assistance of a psychologist.

I want to note that the child’s age is also important. This should be done from the age of ten, but some of the children are able to express their thoughts at any age. Therefore, the child’s opinion is important as we cannot take a decision concerning them without listening to them and taking their opinion into account. This is a fundamental right of the child – to state their opinion in court. Hence, when children are taken to court, this is our problem, of the specialists who work with children.

IPN: Mister Bănărescu, I want clarification here. When we speak about the minors who were victims of abuse, in some of the cases the abusers are punished in many years or can obtain acquittal. You explained the procedure, saying that these children should not be subject to revictimization. But what happens in reality in our courts: are the specialists handling such cases ready to offer appropriate support.

Maia Bănărescu:
Not all the cases in which the minors are victims of violence and abuse, including sexual assault, are denounced. The children not always tell about what happened to them or tell about this in several years. If these children are in families, this is the responsibility of parents. If we refer to children who are in placement centers, the situation is more problematic here. I want to refer to a case I’m examining. It goes to two children who are in a placement center where an older mate abused a younger minor and the boy in a period told that he was raped by an older boy. The responsible tutelage authorities ignored this case, but it later reached the Police and the Prosecutor’s Office. Everyone avoided responsibility, saying there is no evidence and the case wasn’t taken to court.

This is a situation when the case wasn’t investigated and didn’t reach court because all the circumstances weren’t determined and proofs weren’t collected. But this is not right. There are pending cases that can last for years. I here reiterate the important role played by the other stakeholders – how active they are in the administration of justice.

I talked to a judge and asked him about the obstacles to the examination of such cases. The judges have training and specialize in cases involving children, but we also need to take into account the problems of the system. In Chisinau, the number of cases is very large and the judges give priority to cases involving minors. The legislation provides these cases are examined the first, but a lot of questions exist here too.

IPN: Who decides these priorities?

Maia Bănărescu:
The judge does. Domestic violence, human trafficking and other cases are also given priority.

IPN: So, it is left to the discretion of the judge?

Maia Bănărescu:
According to the schedule. There are cases that are sent back by the judge because the investigation wasn’t effective. The most important thing in all the cases is that the minor, regardless of the status, should enjoy the same questioning conditions. The cases are delayed not only due to judges, but also because the documents that reach court are of an inappropriate quality.

The state has several obligations: to prevent such cases; to efficiently examine the applications, to identify the abuser, to ensure the victim’s protection and to prevent continuous ill-treatment. If these duties are not fulfilled, the quality of justice has an unwanted impact on the child.

I devoted attention to a case in which two children were taken from the family because one of the parents (the father) allegedly sexually abused one of the children. Respectively, criminal proceedings were instituted against the father. Three years have passed since this case reached court and a final decision hasn’t been yet taken. In the period, the children have been move from one tutelage authority to another, then to a placement center, then to the biological family and even to other persons. The father of these children says that there is no final court decision and there is the presumption of innocence. Now this case reached the ECHR, which is to pronounce on it.

The Government must provide a response over this case and not only it. We also have other cases, like the well-known case of Jeremiah in which the state was unable to interrupt the ill-treatment.

IPN: The number of cases of violence and abuse that reach the ECHR has increased. What is the reason – the fact that the people are better informed and know that they can seek justice at the European Court of Human Rights or another one?

Maia Bănărescu:
Yes, the number of such cases increased but insignificantly. This shows that the citizens are better informed and know the mechanisms. But there are also a lot of activists and human rights defenders who are interested in these cases and submit them to the High Court. The cases that the ECHR accepts as involving violations of rights stipulated in the Constitution are important.

Besides the ECHR, there are also other mechanisms that can be used by children and grownups, such as the Committee on the Rights of the Child. Do our citizens know where they can seek help? I can say ”no” with certitude as there are a lot of cases that the people do not report either because they are afraid or are ashamed or due to stereotypes. I refer both to children and to adults and women.

All studies show that the women and children most often become victims of violence and abuse. I do not agree that they are collateral victims of domestic violence as the minors are part of this process and suffer. Respectively, the children do not tell about such cases for fear of not being understood. The adults are ashamed and do not know the mechanisms and places where they can seek help. The parents do not want society to know that their child was sexually abused.

IPN: Because this child will be later blamed in society too?

Maia Bănărescu:
In principle, we live in society and, judging by the recommendations coming from committees to which we are a party, our society is one in which violence is at home. We are educated in violence even if we have many laws that ban the use of violence. You see what is happening in education.

One of the recommendations of the UN committee says that in the Republic of Moldova, education by beating children is recognized in families. So, everything starts from the family but this means a very violent society later. Evidently, this violence should be prevented and the role of the state and of the whole society is to intervene. We, as community, should not tolerate violence. We must be active and communicate so as to get rid of stereotypes, especially with regard to the children who are victims or witnesses to use of violence. We must have a friendly attitude and support them. The role of educational institutions here is very important. Social services for children who need to be taken out of families in which they are abused haven’t been developed in Moldova yet. The abuser can be removed from the family. But what shall we do with the conditions in which the children continue living. This environment is very important.

IPN: How important are the psychological counseling and emotional support services in this regard? Do we have such in the Republic of Moldova?

Maia Bănărescu: In the examination of cases of abuse and violence against children, it is very important to listen to the child, to subject them to psychological tests and to support them psychologically as, regardless of the gravity of cases, the abuse is a very big psychological trauma for the children. Support should be offered throughout the investigation of cases. Not only the child victim, but also the family needs support.

IPN: Does the state provide such services or there are nongovernmental organizations that can offer support and psychological advice to victims?

Maia Bănărescu:
The state developed a lot in this regard, in the observance of human rights, children’s rights. Evidently, there are big reservations here and it is normal to be so as, given our conditions, the state does not provide a large part of services.

Relevant legislation exists and can be improved, but the development of child support services necessitates considerable financial resources and in this case the state has very good cooperation with nongovernmental organizations and we have a very large number of nongovernmental organizations that provide high-quality services for children. These include all types of examinations and psychological advice. The child who needs is helped to get to another NGO that can offer counseling services during a longer period of time.

Such kind of services should be developed in all the regions of the Republic of Moldova. This is only a way in which the state can cooperate with nongovernmental organizations in the provision of assistance to children. There is also the free assistance provided by lawyers. The state is obliged to make this service available.

IPN: Does this happen and do we have enough lawyers who can offer such free services?

Maia Banarescu:
There are office lawyers who are trained through the agency of projects supported by international organizations and this way the child benefits from free state assistance. This is very important. Yes, the quality is different, from case to case. I met minors in Penitentiary No. 10, who said that they hadn’t known the lawyer before their meeting in the courtroom. They also said that they didn’t know they could benefit from this free service, while the parents already hired a lawyer.

I met children in remand prisons whose sentence was final and they were to be transferred to Penitentiary No. 10 to serve this and they didn’t know for what and for how long they will be held there. This also shows the quality of justice and of the work of lawyers and judges.

Evidently, I, as the Ombudswoman for Children’s Rights, try to offer the necessary support to the children when I discuss with them. I make effort to organize meetings with family members for children held in penitentiaries as this is very important. We are a society and should become involved and should not think that “someone else is responsible”.

IPN: As regards cases when victims give up obtaining justice halfway, have you realized the causes for such decisions during your activities?

Maia Bănărescu:
In the case of children, the parents as legal representatives are those who decide if they will go on or not. Some give up but justice should be anyway done. If the victims are adults, they can decide to give up at a particular stage or not. Giving up means withdrawing the application, but the offense remains. In the case of children, the procedure is very clear and it is mainly respected.

When we speak about adult victims of violence or sexual abuse, we must say that the woman does not want to go to court because she needs to go again and again through those negative feelings she experienced during the abuse. But the legislation clearly provides that revictimization should not be allowed. So, the prosecution officer, the judge of inquiry in the pre-trial process need to find answers to all the relevant questions so as to elucidate the circumstances and the woman is no longer put those questions in court.

Some of the aspects are clarified in court following particular procedures but they should never talk about the personal life as this has nothing to do with the abuse. In the court, the judge should be active and should avoid questions that can subject the person to revictimization. For his part, the lawyer should formulate the questions in a very decent and discreet way so that the victim does not experience again those traumatizing moments.

There is one more serious issue regarding adult women, who are left alone in the face of these cases. They need to look for lawyers, to seek expertise while in a state of affect. The woman needs to cover this road alone and when she reaches the courtroom and a lawyer or a prosecutor there puts some indecent questions about her personal life, she is traumatized again.

We must act professionally. At the stage when the victim is already in court, revictimization has a very serious emotional impact. In the case of children, I do not want to accept the possibility of taking child victims of sexual abuse to court. These children should no way be in the courtroom.

IPN: Mister Bănărescu, discussing the justice sector reform in this connection, can you say what should be improved for such cases to be dealt with swifter and to even avoid cases of injustice?

Maia Bănărescu: Any reform should be based on a strategy centering on human rights. This means we need to first see the person and should then find mechanisms, legislation by which to offer the persons what they need. This is a matter of principle and the legal framework should meet these criteria. The approach should be based on human rights. The state should fulfill these obligations deriving from the adopted international standards and should offer more mechanisms.

For example, the protocol that enables to go to the UN Committee and to file complaints was ratified this year and it is very important to take the ERCHR’s case law into account and to apply it. It is very important to take into consideration the opinion of the Ombudsperson when amending the legislation as we come up with analyses based on standards and the legal framework.

I will give an example. The law on the rights of the child is the first and most important law for applying the UN Convention on the Rights of the Child. But this law contains some outdated articles and should be urgently amended. Law No. 140, which offers protection to children in situations of risk, was amended.

As to the Penal Code, we proposed questioning not only the victims but also the witnesses and the child offenders in friendly conditions as these are also victims of society. The age from which children can be questioned in friendly conditions should be raised from 14 or 16 to 18 as any person up to the age of 18 is considered a child.

So, this is the role of the Ombudsperson in general and of the Ombudswoman for Children’s Rights in particular, as a national institution for the protection of human rights, which must independently monitor the implementation of international documents on human rights at national level and fulfill positive obligations concerning the protection of persons.

IPN: I think it is our duty, of everyone, to make public more information about how we can react to cases of injustice.

Maia Bănărescu: Yes, a lot depends on the victim. The victims of abuse should have the courage to speak and denounce the cases and communication is very important here. It is important to speak about this in society as a lot of women in rural areas are now subject to violence but they don’t know that they are victims of domestic violence.

The interview entitled “Observance of human rights in the Republic of Moldova – Injustice in cases with a powerful emotional impact: abuse, violence, torture” was conducted by IPN News Agency as part of the project “Support for the Justice Reform through multimedia coverage of cases of alleged injustice”. The video variant of the interview can be seen here.

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