FOURTH SECTION
Application no. 30808/11
A,B and C
against Latvia
lodged on 12 May 2011
STATEMENT OF FACTS
A. The circumstances of the case
1. The investigation into the alleged indecent treatment of the applicants
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. Following a complaint of the applicants’ parents that from summer 2008 to September 2009 their daughters had been subjected to indecent acts by their coach, on 4 January 2010 the State police initiated criminal proceedings under section 162 of the Criminal Law against the coach. The three applicants were granted victim status in the proceedings. According to the statements of the victims and their parents, in 2008 and 2009 every week the applicants were psychologically forced by their coach to attend sauna naked in his presence. The coach did not allow them to wear swimming suits in sauna arguing that it was not good for their health. He also frequently entered the girls’ changing rooms while the girls were naked and pretended that he was looking for someone. Occasionally he touched his pupils by their intimate body parts without reason or while massaging them; he had also made indecent remarks.
4. Pending the criminal investigation several security measures were applied against the coach, such as an order not to change the place of residence, restrictions in relation to his occupation as well as a prohibition of meeting certain individuals.
5. During the investigation the police questioned more than twenty witnesses, mainly the current and former students of the suspected coach, as well as the parents of the pupils. They all gave positive remarks about the coach’s professionalism. Some of them indicated that the mother of the first and the second applicant wished to discredit the coach owing to certain personal antipathies against him.
6. In April and May 2010 the applicants underwent forensic psychological examination. According to the expert’s report the applicants did not possess such characteristics as susceptibility and tendency to revenge or tell lies, as well as they did not have uncritical desire for attention from the opposite sex. The report concluded that as a result of the alleged acts of the coach the applicants had not incurred psychological trauma. It also noted that as a result of the impugned acts: the first applicant had been subjected to unpleasant feelings, insecurity, anger and lack of trust in communication with other coaches and elderly men in general; the second applicant retained anger, felt offended and guilty. According to the report, after the impugned activities the third applicant felt apathetic, depressed and unable to concentrate. These feeling had lessened over the time but during the expertise the third applicant retained shame, anger, unpleasant thoughts and memories about the acts of the coach. Owing to their psychological condition it was advised not to authorise the applicants’ presence in the investigation of the criminal case or the trial.
7. On 18 October 2010 the police terminated the criminal proceedings for absence of evidence of a crime. The investigation established that the suspected coach had advised the girls to attend sauna for, according to him, it was an indispensable part of the training process, and that in the sauna he had massaged the naked girls with a birch besom. When it was necessary he had also massaged the painful body parts of his pupils. The decision further stated that according to the witness testimonies the girls had attended the sauna undressed voluntarily or following example of other girls, and that the investigation bore no evidence that the coach had massaged the girls with an aim of satisfying his sexual desires or provoking sexual senses to the applicants, as required under section 162 of the Criminal Law. The decision was sent to a supervising prosecutor.
8. In the complaint to the supervising prosecutor the applicants’ parents argued that the investigation had failed to question other specialists. They also alleged that in assessing the volunteer character of the applicants’ actions the investigation had failed to take note of the fact that the pupils were taught to obey the orders of the coaches and that the investigation had ignored other episodes of sexual harassment. The complaint invoked that no weight had been given to several important statements given by the applicants and that various witnesses who could possibly provide testimonies about the indecent acts were not questioned. It also brought attention to the confused statements of the coach who had on one occasion regretted the fact that the applicants had attended the sauna undresses but later denied the fact. Finally, the parents asked for another forensic expertise to be carried out to the applicants.
9. In November 2010 the first two applicants were examined by an independent psychologist chosen by the applicants’ parents. The report in relation to the first applicant concluded that she suffered from several physical and emotional symptoms (such as insomnia, medium severe depression, anxiety and shame, thoughts of self-destruction and signs of apathy) which might have been the result of ill-treatment or strong psychological trauma, and which were characterised as post-traumatic stress symptoms. According to the report, the first applicant had noticed serious emotional changes from the moment she had consciously realised what the coach had done. The report also stated that even without seeing the coach the first applicant had intense reactions (crying, alarm, anger, trembling) when confronted with the past events related with the coach.
10. The applicants’ representatives asked the supervising prosecutor to add the reports to the criminal case.
11. On 1 December 2010 a prosecutor of the Riga Court Regional Prosecutor’s Office, by reiterating the reasoning of the impugned decision, dismissed the complaint. The prosecutor noted that there were no grounds warranting the ordering of a repeated medical assessment of the applicants. It also explained that it was not possible to add the report of an independent psychologist to the case for the criminal proceedings had been discontinued.
12. Following the appeal lodged by the applicants’ mothers, on 14 January 2011 a superior prosecutor of the Riga Court region Prosecutor’s Office recognised that the investigation into the applicants’ allegations had been carried out efficiently and that there were no grounds for re-opening the investigation. Consequently, the decision adopted by a lower prosecutor was upheld.
13. On 28 February 2011 the decision was upheld by a prosecutor of the Office of the Prosecutor General whose decision was final.
2. Attempts to re-open the investigation
14. In August 2011 the third applicant was examined by an independent psychologist chosen by her family. The report concluded that the third applicant did not show serious signs of post-traumatic stress symptoms, and that she might have had only individual symptoms. It noted also that the events related with the coach had provoked her feelings of anxiety, perplexity and avoidance.
15. In July 2011 the representative of the first and the second applicant, and in December 2011 the representative of the third applicant relied on the findings of the independent psychologist and asked the Riga Court Region Prosecutor’s Office to reopen the criminal proceedings. The requests were dismissed in September 2011 and February 2012 respectively in all the levels of the Prosecutor’s Office which stated, inter alia, that the consequences did not form part of the necessary elements of a criminal offence punishable under section 162 of the Criminal Law. Accordingly, the conclusions of the psychologist’s report could not change the investigator’s findings that the actions of the coach did not contain the elements of the criminal offence under the above section.
B. Relevant domestic law
Criminal Law (in force at the material time)
16. Section 162 provides that for a person who commits indecent acts to a minor against the will of the minor or if such acts have been committed by a person who has attained the age of majority, the applicable punishment is deprivation of liberty for a term not exceeding three years. For a person who commits indecent acts to an underaged person, the applicable punishment is deprivation of liberty for a term not exceeding five years.
17. Section 174 provides that for a person who commits cruel or violent treatment of a minor, if physical or mental suffering has been inflicted upon the minor and if such has been inflicted by persons upon whom the victim is financially or otherwise dependent and if the consequences provided for in Section 125 or 126 of this Law are not caused by these acts, the applicable punishment is deprivation of liberty for a term not exceeding three years. For a person who commits the same acts, if commission thereof is against an underaged person, the maximum punishment is five years.
COMPLAINTS
18. The applicants complain under Article 3 of the Convention that the State authorities have failed to carry out an effective investigation into their complaints of sexual harassment, namely indecent acts committed to them by a pedagogue at a State-run education establishment.
19. They further complain under Article 8 that by failing to carry out an effective criminal investigation the State has failed to exercise its positive obligations aimed at preventing the committing of indecent acts against minors and protecting their physical integrity.
QUESTIONS TO THE PARTIES
1. Does the case concern a positive obligation arising under Article 3 and/or Article 8 of the Convention, to protect the applicants’ private life and physical integrity, especially taking into account the applicants’ age?
2. Has there been a violation of Article 3 and/or Article 8 of the Convention in relation to the allegedly ineffective investigation into the acts carried out in the sport school and the alleged failure to take into consideration the findings of the psychologist?
Full & Egal Universal Law Academy