Ineffectiveness of an investigation into allegations of sexual abuse of a child: violation of the Convention
JUDGMENT
A.P. v. the Republic of Moldova 26.10.2021 (app. no. 41086/12)
SUMMARY
The case concerned the effectiveness of an investigation conducted by the Moldovan authorities
into allegations of sexual abuse perpetrated by a twelve-year-old boy on the applicant, who was five
years old at the time.
The Court found in particular that the investigation carried out by the authorities in the present case
had been ineffective in that it had not been thorough and had taken no account of the applicant’s
particular vulnerability.
PROVISION
Article 3
PRINCIPAL FACTS
In 2006 the applicant, five years old at the time, had allegedly been raped and sexually abused by a
twelve-year-old boy. Some time after the alleged facts he had told his mother about the attack.
In 2010 and 2011 the applicant’s mother lodged two complaints with the prosecutor’s office,
requesting an investigation. The prosecutor’s office refused on the grounds that there was no
evidence to confirm the allegations. The applicant’s mother contested that decision, complaining
that the psychological report of 28 September 2010 – drawn up by a psychologist from the
association “National Centre for the Prevention of Child Abuse” after four psychological assessment
sessions with the applicant – had not been taken into account. The report stated that the applicant
suffered from disorders in the affective, cognitive and behavioural spheres caused by the events
which had occurred, that is to say the past sexual abuse and ongoing physical and psychological
abuse.
In 2012 the higher-level prosecutor upheld the decision not to initiate a criminal investigation. In the
same year, the applicant’s mother having appealed, the investigating judge upheld the prosecuting
authorities’ decisions, noting in particular that the applicant’s mother had not complained until
2010.
According to a 2018 medical certificate concerning treatment undergone by the applicant, he
suffers, amongst other things, from emotional disorders.
Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect
for private and family life), the applicant submitted that the investigation into the allegations of
sexual abuse had been ineffective.
THE DECISION OF THE COURT…
Article 3 (prohibition of inhuman or degrading treatment)
The Court pointed out that where a person alleges, on arguable grounds, that he or she had been
the victim of acts contrary to Article 3 of the Convention, the domestic authorities had to conduct an
effective official investigation such as to facilitate the establishment of the facts and the
identification and punishment, as appropriate, of those responsible.
In this case the Court noted that the allegations of rape and sexual abuse sustained by the applicant
were sufficiently serious to fall within the ambit of Article 3 of the Convention. Furthermore, having
regard to the psychological report drawn up by the specialist association “National Centre for the
Prevention of Child Abuse”, the Court considered that those allegations had been arguable and that
the domestic authorities should therefore have carried out a sufficiently thorough investigation in
order to elucidate all the circumstances of the case.
It further noted that at the time the alleged perpetrator had not yet reached the age of criminal
responsibility established by Moldovan legislation and that he could not have been prosecuted.
Nonetheless, it reiterated that it had already had occasion to affirm that in such situations, and
having regard in particular to the fact that the reported acts had potentially amounted to treatment
prohibited under Article 3 of the Convention, the authorities had still been bound by the procedural
requirement to shed light on the alleged facts.
As regards the thoroughness of the investigation conducted in this case, the Court noted that the
police, the public prosecutor’s office, and the investigating judge had taken no account of the
psychological report of 28 September 2010 drawn up by a specialist association, whose findings to
the effect that the applicant had sustained sexual abuse had not been disputed during the domestic
proceedings or before the Court. It held that the report in question had constituted evidence which
ought to have been taken into consideration during the investigation carried out by the authorities.
The latter could have interviewed the psychologist who had prepared the report or ordered another
psychological expert report in order to answer any additional questions not covered by that one. The
Court observed that no such action had been taken by the authorities responsible for the
investigation.
The Court did not overlook the Government’s argument that the effectiveness of the investigation
had been undermined by the fact that the applicant’s mother had lodged the complaint four years
after the events. Clearly, the Court could not deny that the lapse of time in question could have had
an adverse effect on the authorities’ capacity for gathering evidence. Nevertheless, it considered
that that had not released those authorities from their obligation to conduct a sufficiently thorough
investigation as soon as they had become aware of the arguable allegations of sexual abuse of a
minor.
Lastly the Court noted that the applicant had not been accompanied by a welfare assistant, a
psychologist or any other kind of specialist during the preliminary investigation. It had already had
occasion to rule that such a finding was sufficient to conclude that a child having allegedly suffered
sexual abuse had not, having regard to his specific vulnerability, been adequately provided for
during the domestic proceedings. The lack of any assistance for the applicant, a minor, during his
interview with the authorities was especially unfortunate as there was nothing to suggest that the
police officer who had interviewed him had had any special training for such situations.
Consequently, the Court concluded that the investigation conducted by the authorities had been
ineffective because it had not been thorough and had failed to take account of the applicant’s
particular vulnerability. There had therefore been a violation of Article 3 of the Convention.
Just satisfaction (Article 41)
The Court held that the Republic of Moldova was to pay the applicant 7,500 euros (EUR) in respect
of non-pecuniary damage and EUR 3,360 in respect of costs and expenses.
Separate opinion
Judge Koskelo expressed a concurring opinion, joined by Judge Kūris. This opinion is annexed to the
judgment.
