The state has taken adequate measures to investigate allegations of child sexual abuse. No violation of the ECHR.

JUDGMENT 

Α and Β v. Croatia 20-06-2019 (no. 7144/15)

see here

SUMMARY 

Complaint about inaction by the Croatian authorities in allegations of sexual abuse of children. The Court noted that the authorities had taken measures to address conflicting claims of a situation involving complaints from a mother about the sexual abuse of her child by her father. The Court concluded that the authorities had fulfilled their obligations to investigate the allegations and that there was no violation of the procedural aspect of Article 3 or Article 8 with respect to the child. No violation of the right to respect for the private and family life of the ECHR.

PROVISIONS 

Article 3

Article 8

PRINCIPAL FACTS 

The applicants were Croatian nationals, A and B, who were born in 1984 and 2009 respectively. They
are a mother and her daughter.

In June 2014 A noticed B, then four and half years old, playing with her genitals, and the child also
said that she had played like that with her father, C, every night before going to bed. A called a
telephone hotline and made an appointment to visit a special child protection clinic.

A subsequently reported C to the police, which investigated her allegations. The child was examined
by medical and psychological specialists during the course of the proceedings, in which the father
also accused A of emotionally and physically abusing the child.

Among other steps, the police interviewed a paediatrician who had treated B and two teachers in
her kindergarten. She was also examined by a gynaecologist, who found no injuries consistent with
sexual abuse, and later by a team of specialists – a paediatrician, a psychologist, and a psychiatrist –
from the child protection clinic.

The team did not find clear signs of sexual abuse and saw elements of pressure from the mother and
the possibility of inducement by her. It recommended support for the child and counselling for the
parents. The police carried on their investigations, interviewing the father in August 2014. He denied
abusing his daughter and made a counter-allegation that A had been physically punishing the child.
Psychological reports were also drawn up in November and December 2014.

In December 2014 the State Attorney’s Office decided to close the case, finding that it could not
conclude that C had committed any prosecutable offence. In its formal decision, issued in January
2015, the State Attorney’s Office, stated, among other things, that there were no signs of old or fresh injuries to the child consistent with sexual abuse. She showed an inappropriate interest in sexual and erotic behaviour, but that could not be attributed to abuse by the father. The report also raised the issue that the mother had induced the child to make the allegations.

An investigating judge refused A’s subsequent request to open an investigation in October 2015, a
decision that was upheld on appeal in December of the same year.

In August 2014 the welfare centre in charge of the case ordered measures to protect B’s interests,
including supervision of parental care of both A and C. The domestic case also involved several sets
of proceedings for the custody of B.

THE DECISION OF THE COURT 

Article 3 and Article 8

The Court decided to examine the complaint under these two Articles alone and held that A could
not claim to be a victim of a violation of her rights. The case therefore had to be considered in
relation to B alone.

Furthermore, owing to the relationship between A and the alleged perpetrator and a potential
conflict of interests between A and B, the Court asked the Croatian Bar Association to appoint a
lawyer to make submissions on behalf of the child.

The appointed lawyer argued on behalf of the applicant, B, that the criminal-law mechanisms in
Croatia regarding allegations of child sexual abuse were ineffective. She submitted that the
authorities should have examined three issues: whether she had been sexually abused by her father;
whether she had been sexually abused by someone else; and whether she had been emotionally
abused by her mother.

The authorities had failed to properly investigate any of those aspects and had failed to appoint a
special guardian for her during the proceedings, although it had been obvious that neither A nor C
had been capable of protecting her interests.

The Government argued that the authorities had carried out all the necessary steps in the case.

The Court observed that its task in this case was to look at the effectiveness of the investigation into
the allegation against the father and to examine an alleged lack or inadequacy of measures to
protect the rights of a child in criminal proceedings who had been an alleged victim of sexual abuse.
The Court reiterated that Article 3 and Article 8 required States to safeguard the physical and
psychological integrity of individuals, including by having an adequate legal framework and carrying
out effective investigations. Children were particularly vulnerable in cases of sexual abuse.

The Court observed that the complaint by the applicant, B, had three aspects: whether there was an
appropriate regulatory and legal framework to protect her rights under these two Articles of the
Convention; whether the authorities had applied that framework in a way which had met their
procedural obligations to carry out an effective investigation; and whether the authorities had taken
sufficient consideration of her rights as a child victim of sexual abuse.

The Court noted that Croatian criminal law prohibited the sexual abuse alleged in the case as an
aggravated offence when compared to the same acts against adults and provided for the
prosecution and effective punishment of those responsible. The Code of Criminal Procedure also
contained a provision ensuring that a child victim of a criminal offence had special rights.
The authorities also had to follow certain rules in such cases, which required co-ordinated action by
all the bodies involved. The Court found that overall Croatia had an adequate legal and regulatory
framework for the specific circumstances of the case.

When applying such criminal-law mechanisms, the authorities had had to address the particular
vulnerability of the applicant as a young child who had allegedly been a victim of sexual abuse by her
father, taking her best interests as a primary consideration and affording protection to her victim’s
rights and avoiding secondary victimisation.

The Court observed that A had informed the police and a social welfare centre of her concerns that
her daughter had been sexually abused. The child was later seen by a team of experts and a
gynaecologist. No evidence of sexual abuse was found after these steps.

Subsequent psychological reports had been inconclusive: a report in November 2014 had stated that
B had described sexualised behaviour by the father towards her and it had advised continued
therapy, while a report in December that year had established that B had been exposed to content
and/or conduct of a sexualised nature by an adult, which had resulted in her overtly sexualised
manner.

The authorities had interviewed witnesses, including B’s teachers, members of the family, and the
father, however, they had ultimately been faced with two conflicting accounts, little direct evidence
and three inconclusive expert opinions.

The prosecution authorities had decided that there was insufficient evidence for a prosecution and
the Court stated that it was neither in a position to draw a conclusion on the issue nor could it
substitute its own findings of fact for those of the national authorities, which were better placed to
assess the evidence and the importance of witness testimony.

The Court found no culpable disregard, discernible bad faith or a lack of will on the part of the police
or the prosecution in performing their duty under the law. It was also satisfied that the authorities
had done everything that could reasonably have been expected of them to protect the rights of the
applicant and to act in her best interests.

There had therefore been no violation of the procedural aspect of Article 3 and Article 8 of the
Convention in the particular circumstances of the case.

Separate opinions

Judge Wojtyczek expressed a concurring opinion, Judges Koskelo, Eicke and Ilievski expressed a joint
concurring opinion, and Judges Sicilianos, Turković and Pejchal expressed a joint dissenting opinion.

The opinions are annexed to the judgment (echrcaselaw.com).

 

 

 


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