Inadequate investigation into allegation of sexual abuse in children’s home
JUDGMENT
Ε.L. v. Lithuania 09.04.2024 (app. no. 12471/20)
SUMMARY
The applicant, Mr E.L., is a Lithuanian national who was born in 2006 and lives in the village of Šatijai,
in the Kaunas Region (Lithuania).
The applicant was appointed a guardian in 2013 as the courts had restricted the parental rights of his
biological parents. In 2018 his guardian reported to the childcare authorities that the applicant had
told her that he had been sexually abused by three older boys when placed in a children’s home
between 2008 and 2013.
The childcare authorities complained to the police who, in November 2018, opened a pre-trial
investigation into the offence of sexual assault against a young child. The prosecuting authorities
identified and questioned as witnesses the possible perpetrators, as well as the director of the
children’s home. They all denied that any sexual abuse had taken place. The authorities also
requested the courts to authorise the tapping of these four individuals’ telephones. Authorisation of
that tapping was extended when the prosecutor noted that they had started communicating more
often and by coded messages.
The applicant was subsequently interviewed by the pre-trial investigation judge. He testified that he
had been anally raped by an older boy at the children’s home and that two other boys had watched
and one of them had laughed. He stated that when he had told the director of the children’s home
what had happened, she had told him “that is enough” and bought him a “big red toy car”.
In addition, he underwent a medical examination, which reported no injuries on his body that could
indicate that sexual violence had occurred. He was also examined by a psychologist from a centre
specialising in assisting children who are victims of sexual violence (the Children’s Assistance
Centre). The psychologist concluded that the applicant had possibly experienced sexual abuse.
PROVISION
Article 3
PRINCIPAL FACTS
The applicant, Mr E.L., is a Lithuanian national who was born in 2006 and lives in the village of Šatijai,
in the Kaunas Region (Lithuania).
The applicant was appointed a guardian in 2013 as the courts had restricted the parental rights of his
biological parents. In 2018 his guardian reported to the childcare authorities that the applicant had
told her that he had been sexually abused by three older boys when placed in a children’s home
between 2008 and 2013.
The childcare authorities complained to the police who, in November 2018, opened a pre-trial
investigation into the offence of sexual assault against a young child. The prosecuting authorities
identified and questioned as witnesses the possible perpetrators, as well as the director of the
children’s home. They all denied that any sexual abuse had taken place. The authorities also
requested the courts to authorise the tapping of these four individuals’ telephones. Authorisation of
that tapping was extended when the prosecutor noted that they had started communicating more
often and by coded messages.
The applicant was subsequently interviewed by the pre-trial investigation judge. He testified that he
had been anally raped by an older boy at the children’s home and that two other boys had watched
and one of them had laughed. He stated that when he had told the director of the children’s home
what had happened, she had told him “that is enough” and bought him a “big red toy car”.
In addition, he underwent a medical examination, which reported no injuries on his body that could
indicate that sexual violence had occurred. He was also examined by a psychologist from a centre
specialising in assisting children who are victims of sexual violence (the Children’s Assistance
Centre). The psychologist concluded that the applicant had possibly experienced sexual abuse.
Ultimately the pre-trial investigation was, however, discontinued on the grounds that no information
had been obtained from the alleged suspects or the director of the children’s home to prove that a
crime had been committed.
The applicant and his guardian unsuccessfully appealed to the courts, which essentially agreed with
the prosecuting authorities that there was no evidence to contradict the testimonies of the suspects
or the director of the children’s home.
Throughout the proceedings the applicant made repeated requests that the prosecutor and courts
order a comprehensive forensic psychiatric and psychological expert examination (teismo
psichiatrijos – teismo psichologijos ekspertizė). In their refusals, both the higher prosecutor and
courts relied on a legal provision which provided that it was the prosecutor’s prerogative to decide
which investigative measures to take.
THE DECISION OF THE COURT…
The Court agreed with the Government that a number of relevant and timely measures had been
taken to investigate the applicant’s case. Nevertheless, it considered that there had been
shortcomings in the proceedings.
Firstly, the prosecutors had on several occasions limited the scope of their enquiries to hearing only
the alleged perpetrators’ version of events. As argued by the applicant during the proceedings,
criminal investigations would never produce results if they were always discontinued when the
suspect had not confessed.
The Court was also attentive to the applicant’s argument that the Lithuanian Supreme Court had
previously emphasised that the absence of witnesses in cases of sexual abuse against minors could
not be a reason for failing to investigate and to send such cases for trial. Psychiatric and
psychological forensic conclusions were therefore all the more important evidence in such cases.
Above all, neither the higher prosecutor nor the courts had made the effort to explain why a forensic
psychiatric and psychological examination had not been necessary. Indeed, they had persistently
hidden behind the legal provision providing that it had been the prosecutor’s decision to take. The
authorities had taken that approach, despite a psychologist’s conclusion that sexual violence could
have taken place (in the report by the Children’s Assistance Centre) and the prosecutor’s own
admission that the telephone tapping had revealed that the four individuals designated as witnesses
had begun meeting more often, possibly in order to coordinate their versions of events.
The Court therefore found that in this particular case the State had failed in its duty to effectively
investigate the applicant’s allegation of ill-treatment. There had accordingly been a violation of
Article 3 of the Convention.
Just satisfaction (Article 41)
The Court held that Lithuania was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary
damage.
