The European Court of Human Rights has delivered a judgment in the case of M. M. B. v. The Slovak Republic

Strasbourg, 26 November 2019 – The European Court of Human Rights has delivered a judgment finding a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The case concerned an investigation into her father’s allegations of sexual abuse of a minor complainant. The first investigation was initiated on the basis of a complaint filed in December 2012 by the complainant’s mother, who was four years old at that time. The investigation produced an expert’s opinion that the complainant showed no signs of sexual abuse and in May 2013 the prosecution was discontinued. In March 2014, the complainant’s mother filed a new complaint against the complainant’s father, and a second investigation was initiated. In the course of this investigation, several expert opinions were drawn up and, in April 2015, the complainant’s father was charged with sexual abuse. However, the Prosecutor of the Regional Prosecutor’s Office in Košice canceled the resolution on the accusation and ordered the investigators to hear the experts who had prepared one of the opinions in order to obtain their clear statement. In October 2015, after hearing the victims, the investigator of the District Directorate of the Police Force in Košice stopped prosecution on the ground that the act had not occurred. The Hearing Officer noted that, despite the conclusions of the complainants that the complainant showed signs of a sexually abused child, due to the lack of any other evidence supporting these conclusions, it was not possible to prove that the act had taken place, in particular that the complainant mixed reality with imagination. The complainant appealed to the Constitutional Court of the Slovak Republic with a complaint of violation of her rights, which dismissed her complaint for manifestly unfounded nature.

In her complaint to the ECtHR, the complainant alleged that the law enforcement authorities and the Constitutional Court had failed to fulfill their positive obligation to protect her physical integrity and private life and to conduct an effective investigation into allegations of sexual abuse. It argued that the national authorities stopped the prosecution, concluding that the act for which it had been committed had not occurred even though it was confirmed that it was sexually abused and argued that the October 2015 decision was arbitrary and inadequately reasoned. The ECtHR found that the objections raised in the complaint could raise issues in the light of Articles 3 and 8 of the Convention, enshrining the prohibition of ill-treatment and the right to respect for private life, according to which the complaint was notified to the Government.

     In its judgment, the ECtHR did not accept the Government’s objection that the complainant could file a complaint under the Public Prosecutor’s Office during the investigation and seek redress of the deficiencies in the investigation, noting that the Constitutional Court, which also applies the subsidiarity principle, the applicant’s constitutional complaint for not exhausting this remedy. As regards the substance of the complaint, the ECtHR, noting that the investigation was initiated immediately after the filing of the criminal complaints, stated that there were no questions about the speed of the investigation in this case. As regards the effectiveness of the investigation, the ECtHR emphasized that several expert opinions were drawn up at national level on the suspicion of sexual abuse of the minor complainant, the conclusions of which contradicted each other. In this situation, the investigator turned to the Child Psychology and Pathopsychology Research Institute of the child, whose experts had investigated the complainant and found it highly likely that the child had experience of sexual abuse. The ECtHR pointed out that, although the utterance of the minor should be treated with the utmost caution, none of the expert reports drawn up found that the applicant had a tendency to lie. He acknowledged that the national authorities faced a difficult task and noted that he did not underestimate the efforts made by the investigator and prosecutors concerned in this case. In his view, the question of assessing evidence and adopting a reasoned and convincing decision has arisen here, rather than the question of their submission. In this respect, the ECtHR had reservations about the weight the investigator attached to a number of conclusions of the Institute’s opinion drawn up to resolve inconsistencies in previous assessments and to the fact that the expert’s findings regarding the father’s personality were not further clarified. He also criticized the decision to stop prosecution, which, in his view, did not contain detailed and convincing reasons. On the basis of the above considerations, the ECtHR concluded that the way in which criminal law mechanisms were implemented in this case did not fulfill the positive obligations of the State under Article 8 of the Convention. The ECtHR, by six votes to one, concluded that this article had been infringed.

     As regards the question of just satisfaction, the applicant claimed EUR 25 000 in respect of non-material damage and EUR 2 991 in respect of costs and expenses. The ECtHR awarded the applicant EUR 10 000 in respect of non-material damage and the amount claimed in order to reimburse the costs and expenses.

     Attached to the judgment was a separate opinion by Judge Lemmens, who disagreed with the majority decision on the violation of Article 8 of the Convention and considered that the investigation met the requirement of effectiveness.

Source: http://www.justice.gov.sk/Stranky/aktualitadetail.aspx?announcementID=2604&fbclid=IwAR0AtmD-1jkrsTjb6YK9zvC9X1wNXX5x8gIig8n6L7-yq_cgwSgM-nSrG7M

Author: Dagmar