FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 11079/02
by B.Č.
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 14 March 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrR. Maruste,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrJ. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 22 February 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs B.Č., is a Slovakian national who was born in 1960 and lives in Košice. She is represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In March 1999 the applicant petitioned for divorce from her husband as their relations had disintegrated. At that time, their son, born in 1992, lived together with the applicant’s husband in one room. The applicant with her daughter born from her previous marriage lived in a different room of the same flat. All family members commonly used the living room and the kitchen.
In the evening of 7 July 1999 the applicant and her daughter found her husband and the boy naked in the living room. They noticed that the penis of the boy’s father was erect. In fear that her husband had abused the boy, the applicant let him spend the night in her room and they slept at their neighbour’s place on the following night.
On 9 July 1999 the child was examined by a psychologist who concluded that he had suffered a psychological trauma. According to the report, the child had made a picture resembling an erect penis when asked to draw his family.
The applicant and her children started living at a different place.
On 3 September 1999 the applicant filed a criminal complaint alleging that her husband had sexually abused the boy. The applicant submitted, in particular, that she had found both her husband and her son lying naked in their living room on 7 July 1999, and that her husband’s penis had been erect.
On 7 October 1999 the District Court in Košice II placed the boy provisionally in the applicant’s custody. It further prohibited the father from meeting the child.
On 23 December 1999 the District Office of Investigation of the Police Corps in Košice II, with reference to the child’s statement, dismissed the complaint holding that nothing indicated that an offence had been committed. The police had before them, among other documents, an opinion submitted by an expert on 19 October 1999. In it reference was made to the boy’s statement that his father had moved his penis as if playing a guitar while being naked when the boy had come to sleep in the father’s room. The child further stated that the father had wanted him to watch him, but had neither touched the boy nor had he wanted the boy to touch him. In his opinion of 19 October 1999, the expert characterised the father’s behaviour as sexually abusive. The expert later admitted that such conclusion could be drawn under the hypothetical assumption that the father’s behaviour had been erotically motivated. Otherwise that behaviour was to be qualified as socially inappropriate.
The applicant filed a complaint against the above decision on 13 January 2000. She pointed out, in particular, that in his statement before an expert her son had affirmed that her husband had manipulated his sexual organ in the presence of the child. Her son displayed the syndromes of an abused child despite the fact that she and the child had moved to a different place. She also referred to the conclusion of a psychologist who had examined the child, at her request, on 9 July 1999. According to the psychologist, the child had suffered a serious psychological trauma.
On 26 January 2000 the Košice II District Prosecutor quashed the investigator’s decision.
In the course of the subsequent criminal proceedings the public prosecutor indicted the child’s father for the offence of sexual abuse pursuant to Article 242 (1) and (2) of the Criminal Code. According to the indictment, the accused, on 7 July 1999, had been lying naked in the living room with an erect penis and had masturbated, while his son had been lying undressed close to him. They had been found in that position by the applicant.
Throughout the investigation the father denied the accusation. He explained that he and the child had watched TV before going to sleep in the evening in issue. They had undressed as it had been very hot that day.
On 25 August 2000 the Košice II District Court discontinued the proceedings as no offence had been committed. It referred to documents included in the file, such as statements of the applicant, her son and daughter as well as of the accused. It also had regard to four expert opinions and the information submitted by an administrative authority. The court concluded that the action described in the indictment could not be qualified as sexual abuse under Article 242(1) and (2) of the Criminal Code. Finally, the decision stated that in criminal proceedings a court can assess only acts which are described in the indictment.
On 15 November 2000 a court decreed the divorce of the applicant and her husband.
On 30 November 2000 the Regional Court in Košice quashed the District Court’s decision of 25 August 2000. The Regional Court noted that two expert opinions supported the public prosecutor’s view that the applicant’s son had been sexually abused. However, the file also comprised a third expert opinion, submitted in the context of proceedings concerning parental rights and obligations. In it the expert, who had examined both the parents and the child, had reached a different conclusion. With a view to having the relevant facts established, the Regional Court instructed the prosecuting authorities to ask the Slovak Chamber of Psychologists to identify a suitable expert. It held that both parents should be examined by an expert, and that the applicant should be asked to explain why she had filed her criminal complaint nearly two months after the incident had occurred. The case was returned to the public prosecutor who re-transmitted it to the police investigator.
On 9 August 2001 the District Office of Investigation in Košice II discontinued the criminal proceedings against the child’s father as the action imputed to him did not constitute an offence. The police investigator heard the two parents, the boy and the applicant’s daughter and several witnesses.
According to the boy’s statements, he had often been obliged to sleep together with the father when the latter had returned home intoxicated. On one occasion, he had been obliged to sleep naked with the father as they had not found his pyjamas. His father had always locked the door. The boy stated that he had disliked sleeping with his father as the latter had been intoxicated and naked.
The applicant’s daughter stated that, in the evening of 7 July 1999, she had seen that her step-father had risen from the sofa with his penis erect and had run to his room at the moment when her brother had switched on the light in the living room. She affirmed that her step-father had in the past stayed with her brother locked in the bathroom and in his room.
In addition to the expert opinions mentioned above, the investigator had also regard to the opinion of a sexologist stating that the accused was heterosexually oriented and that he displayed no signs of sexual deviation.
As there were discrepancies in the various expert opinions, the investigator requested, in accordance with the Regional Court’s instruction, the Research Institute of Child Psychology and Patopsychology in Bratislava to submit an opinion on the relevant issues. The experts of the institute submitted their opinion of 23 pages on 30 April 2001. The experts of the institute examined the boy, his father, the applicant and her daughter and assessed in detail the trustworthiness of their statements. They then commented on the four opinions earlier submitted by different experts. In their conclusion, the experts of the institute held that the father’s behaviour had not threatened the boy’s mental development. They considered trustworthy the boy’s statement according to which the father had neither beaten him nor had he touched his body or asked the boy to touch his genitals. As regards the alleged abuse of the child, the only reliable information represented the boy’s statement according to which his father had moved his penis as if playing a guitar. It was impossible to establish when, in what context and how often such behaviour had occurred. In the experts’ view, it was however improbable that the child had observed his father masturbating. The experts further considered disputable the quality of two expert opinions submitted earlier. As to the signs of neurosis which the boy had displayed in the past, the experts of the institute held that they did not prove that the child had been sexually abused.
On the basis of the above materials the police investigator concluded, in a decision of 9 August 2001, that there was no indication that the accused had behaved in a manner which could be qualified as sexual abuse under Article 242(1) and (2) of the Criminal Code.
On 27 August 2001 the applicant filed a complaint. She argued that the investigator’s decision did not correspond with the evidence taken in the criminal proceedings.
On 14 September 2001 the District Prosecutor’s Office in Košice II dismissed the applicant’s complaint against the investigator’s decision on the ground that the applicant was not entitled to file it. In a separate letter of the same date the public prosecutor informed the applicant, with reference to the opinion of the experts from the research institute, that he shared the view of the police investigator according to which her former husband had not sexually abused the boy.
B. Relevant domestic law and practice
Article 242 of the Criminal Code governs the offence of sexual abuse.
Pursuant to paragraph 1, a person who has sexual intercourse with a person younger that 15 years or who sexually abuses such a person in a different manner is to be punished with a prison term between 1 and 8 years.
Under paragraph 2, the prison term shall be between 2 and 10 years where a perpetrator commits the offence set out in paragraph 1 in respect of a person placed under his or her authority and in abuse of the victim’s dependence.
In practice, forms of sexual abuse other than sexual intercourse within the meaning of Article 242(1) comprise satisfying one’s sexual drive by touching the body of the abused person, kissing or touching genitals provided that such actions are intensive.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention that the Slovak authorities had not considered all relevant facts of the case and had failed to sanction her former husband for his abusive behaviour in respect of their son. In particular, she maintained that the investigator and the prosecutor had considered exclusively the incident of 7 July 1999, and that they had disregarded the boys’ allegations according to which in his presence the father had often exposed his penis and manipulated it in a deliberate manner.
2. Under Article 6 § 1 of the Convention the applicant complained that she was prevented from having the treatment to which her son had been subjected by his father assessed by a court.
THE LAW
1. The applicant complained that the Slovak authorities had failed to sanction her former husband for his abusive behaviour in respect of their son. She relied on Article 3 of the Convention which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court is called upon to address the question whether or not the relevant legislation and practice and their application in the present case, combined with the alleged shortcomings in the investigation, had such significant flaws as to amount to a breach of the respondent State’ positive obligation under Article 3 of the Convention to ensure an effective official investigation into the alleged sexual abuse of the applicant’s son. In doing so the Court is not, however, concerned with allegations of errors or isolated omissions in the investigation; it cannot replace the domestic authorities in the assessment of the facts of the case; nor can it decide on the alleged perpetrator’s criminal responsibility (for recapitulation of the relevant case‑law see, for example, M.C. v. Bulgaria, no. 39272/98, §§ 148-153, 167 and 168, ECHR 2003‑XII).
Upon the applicant’s complaint her then husband was accused of having sexually abused their son. The complaint was based on the fact that the applicant and her daughter, on 7 July 1999, had surprised the boy and his father naked in the living room of their flat and that the father’s penis had been erect. In the course of the proceedings several expert opinions were obtained. One of them referred to the boy’s statements, according to which the father had manipulated his penis as if playing a guitar in the boy’s presence. The father was indicted in respect of the incident which had occurred on 7 July 1999. The case was examined by courts at two levels. The appellate court noted that the expert opinions included in the file were contradictory. It therefore sent the case back at the preliminary stage and instructed the authorities to obtain a new opinion from an expert recommended by the Slovak Chamber of Psychologists.
In accordance with that instruction, the investigator requested the Research Institute of Child Psychology and Patopsychology in Bratislava to submit an opinion on the points in issue. The experts of the institute submitted a comprehensive opinion which, unlike most of the opinions previously submitted, was based on the examination of all persons involved. Prior to drawing their conclusion, the experts also analysed the other opinions available. In their conclusion, the experts of the institute held that the father’s behaviour had not threatened the boy’s mental development. They considered trustworthy the boy’s statement according to which the father had neither beaten him nor had he touched his body or asked the boy to touch his genitals. As regards the alleged abuse of the child, the only reliable information represented the boy’s statement according to which his father had touched his own penis as if he was playing a guitar. It was impossible to establish when, in what context and how often such behaviour had occurred.
After having considered the extensive evidence available, the investigator finally discontinued the proceedings as nothing had been found in the behaviour of the accused which would permit qualifying it as a sexual abuse within the meaning of the relevant law. Subsequently a public prosecutor upheld this conclusion with reference to the opinion submitted by the Research Institute of Child Psychology and Patopsychology in Bratislava.
Thus the investigator and the public prosecutor had regard both to the applicant’s complaint and the facts established in the course of the investigation including the boy’s statements. They ultimately relied on the opinion of experts who had examined all persons involved.
The Court acknowledges the primordial role of experts in cases like the present one where a question arises as to whether equivocal and inappropriate behaviour of an adult in respect of or in the presence of a minor qualifies as sexually abusive.
Having regard to all documents in its possession, the Court considers that the authorities involved investigated to a sufficient degree the circumstances surrounding the alleged sexual abuse of the applicant’s son. Their ultimate decision to discontinue the criminal proceedings against the applicant’s former husband was made in reliance on the opinion of experts from a research institute which addressed in detail the relevant issues including differences in other expert opinions previously submitted. That decision cannot be characterised, in the particular circumstances of the case, as falling short of the requirements inherent in the respondent State’s obligations under Article 3 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further alleged a violation of her and her son’s right of access to a court in that they did not have the accusations of sexual abuse filed against her former husband reviewed by a court. She relied on Article 6 § 1 of the Convention the relevant part of which provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
In accordance with the practice of its organs, the Convention does not guarantee any right to bring criminal proceedings against a third person, and Article 6 of the Convention does not apply to proceedings aimed at instituting criminal proceedings against third persons (see, e.g., Kuznetsov and Others v. Russia (dec.), no. 184/02 or Rékási v. Hungary, no. 31506/96, Commission decision of 25 November 1996). The right to have the accusation of an offence allegedly committed by a third person reviewed by a court cannot, therefore, be derived from this provision either.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy