Communicated on 20 December 2017
THIRD SECTION
Application no. 6318/17
M.M.B. against Slovakia
lodged on 13 January 2017
STATEMENT OF FACTS
1. The applicant, Ms M. M. B., is a Slovak national who was born in 2008 and lives in Košice. The application was brought on her behalf by her mother. She is represented before the Court by Ms I. Rajtáková, a lawyer practising in Košice.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The first investigation
3. On 7 December 2012 the applicant’s mother lodged a criminal complaint (trestné oznámenie) against the applicant’s father. She alleged that the applicant, who was four years old at the time, had been sexually abused.
4. On 12 December 2012 the applicant’s father left the family home following a provisional court ruling and has had no contact with the applicant since then.
5. On 18 January 2013 a criminal investigation was opened before the Košice Police Force District Directorate (Okresné riaditeľstvo Policajného zboru).
6. Following a request by the investigator, on 28 March 2013 a psychological expert opinion was produced (hereinafter the “first expert report”). The request was for an evaluation of the applicant’s and her father’s tendency to lie or distort reality and of any traces and possible after‑effects suggesting that the applicant had been sexually abused. The expert found that the applicant showed no signs of sexual abuse and that neither the father nor the applicant had any tendency to lie. However, the applicant had a vivid imagination typical for children of her age.
7. On 17 May 2013 the criminal investigation was discontinued since no offence was found to have been committed. The mother’s appeal was unsuccessful, as she had no procedural standing to challenge such a decision.
B. The second investigation
8. On 12 March 2014 the applicant’s mother lodged a fresh criminal complaint against the applicant’s father.
She alleged that the applicant, who had been attending the Centre of Pedagogical and Psychological counselling (Centrum pedagogicko‑psychologického poradenstva) since April 2013, had started talking about the events of 2012 and described what had happened between her and her father. The mother also provided the police with two drawings by the applicant depicting her father in a sexually explicit way.
In addition, she submitted a report dated 6 March 2014 by the Centre’s psychologist, who stated that the applicant had revealed her past traumatic experience through drawings and had verbally described situations of abuse during their sessions.
9. The Košice Police Force District Directorate opened an investigation on 22 April 2014.
10. The investigators commissioned three expert opinions.
11. On 26 May 2014 a psychologist, V.S., was asked to assess the applicant’s personality (hereinafter the “second expert report”). The expert concluded that the applicant showed no negative emotions towards her father. She did not find the applicant’s drawings unusual and noted that the applicant’s description of events raised the suspicion and the suggestion that the topic had been artificially perpetuated by people around her. The applicant had no genuine tendency to lie. Rather, she confused reality with imagination (pseudologia fantastica) and employed her fantasy to explain situations she could not understand. She also manifested none of the signs typical for victims of sexual abuse. The expert did not recommend questioning the applicant in the presence of the prosecuting authorities.
12. On 6 June 2014 a sexologist, D. C-Š., was asked to consider the applicant’s father’s sexuality (hereinafter the “third expert report”). The expert concluded that he was not suffering from any sexual deviation and excluded any sexual or other motivation (such as schizophrenia, mental disorder, alcoholism etc.) for any alleged acts against the applicant.
13. On 5 September 2014 a psychologist, D.H., was asked to assess the mother’s personality (hereinafter the “fourth expert report”). She concluded that the mother had a heightened tendency to lie, to make assumptions and to mystify reality. The mother’s statements were very subjective and based on assumptions, suspiciousness, and naivety, assigning sexual connotations to neutral situations. She might have manipulated the applicant and stimulated her sexual imagination.
14. In the meantime, the mother requested another expert opinion. It was adduced to the file on 23 July 2014 (hereinafter the “fifth expert opinion”). The psychologist, O.T., concluded in her report that the applicant displayed symptoms of sexual abuse.
15. Given these divergent conclusions, on 1 December 2014 the investigators requested another expert opinion from the Research Institute of Child Psychology and Patopsychology (Výskumný ústav detskej psychológie a patopsychológie) in Bratislava (hereinafter the “sixth expert report”). According to its conclusions, it was highly probable that the applicant had not invented the events she had described and that she had experienced sexual abuse. They reported that the applicant had referred to her past experience verbally, non-verbally and inadvertently through gestures, which had increased the credibility of her statements. Her drawings had also shown that there was a likelihood of her having experienced the alleged sexual abuse. Furthermore, the applicant was experiencing internal anxiety and general fear. She was also very sexually receptive and her inner stability was distorted by the past inadequate sexual stimulation.
C. Charges against the applicant’s father
16. On 23 April 2015 the applicant’s father was charged with an offence of sexual abuse.
17. On 28 May 2015 the Košice Regional Prosecution Office (krajská prokuratúra) quashed the decision to press charges. The regional prosecutor considered that, bearing in mind the earlier reports, the sixth expert report lacked any express assertion as to whether or not the applicant had been sexually abused. The investigators were therefore ordered to interview the two experts who had prepared the sixth expert report, in order to obtain express statements from them.
18. On 24 June 2015 two experts, E.S., and A.K., were interviewed. They were asked to answer the following question:
“Answer, in an unambiguous manner, whether [the applicant] has or has not been sexually abused by her father, providing reasons for your answer.”
Both experts confirmed all the conclusions reached in their report and reaffirmed that it was not their role to decide whether the crime in question had been committed; this was, rather, the investigator’s role. They stated:
“... It is highly probable that this experience as such was not invented [by the applicant], there is an assumption that she must have gone through and experienced the situation.”
They stated that the mother could not have provoked the applicant’s sexual imagination by asking suggestive or manipulative questions since the latter had displayed specific and authentic behaviour and emotions. They also noted that repeated questioning was not the best way of dealing with victims of sexual violence. However, they confirmed that revealing the details of the applicant’s sexual abuse was an ongoing process rather than a one-off event, and the changes in the applicant’s position and behaviour formed part of that process. Also, had the applicant been subject to external influences, her statements would have lacked consistency, detail, and non‑verbal gestures, which was not the case.
19. The district prosecutor informed the regional prosecutor about the interview of 7 September 2015. In a letter of 17 September 2015 the regional prosecutor stated that the evidentiary situation had not changed and referred to the decision of 28 May 2015.
20. By a decision of 28 October 2015 the investigator of the Police Force District Directorate in Košice discontinued the prosecution on the grounds that no offence had been committed. Referring to the fifth and sixth expert opinions, the investigator acknowledged that the applicant displayed the symptoms of a sexually abused child. However, in the absence of any other evidence supporting those conclusions, it was not possible to prove that the act had been committed, particularly in view of the other expert reports containing the character assessment of the applicant.
21. The mother was not provided with a copy of the decision discontinuing the criminal proceedings, since she had the status of a witness.
D. Constitutional proceedings
22. On 9 February 2016 the applicant lodged a complaint (ústavná sťažnosť) with the Constitutional Court (Ústavný súd) challenging the last decision by the police authorities dated 28 October 2015
23. On 31 May 2016 the Constitutional Court dismissed the applicant’s complaint as manifestly ill-founded. The court concluded that the police authorities had proceeded in accordance with the law and no arbitrariness was detected.
E. Other relevant facts
24. In the context of the applicant’s parents’ divorce proceedings and the determination of their access rights after the divorce, a further expert report was commissioned. In her report of 25 July 2016, Ľ.G., a psychologist, stated that the mother might have provoked or perpetuated the applicant’s interest in sexual themes. The expert also found that the applicant had no tendency consciously to lie or to distort the reality and she could not have invented certain stories without having experienced them in the past. However, four years had passed since the alleged sexual abuse and the applicant’s memory had naturally faded. In any event, she did not find any symptoms of sexual abuse, apart from some emotional trauma, which could have been connected either to sexual abuse or to her parents’ separation.
COMPLAINT
25. The applicant complains that both the criminal justice authorities and the Constitutional Court failed to meet their positive obligation under Article 8 of the Convention to protect her physical integrity and private life and to carry out an effective investigation into the allegations of sexual abuse. In particular, she alleges that the domestic authorities terminated the prosecution, concluding that no criminal offence had been committed even though it had been confirmed that she had been abused.
She also complains that the decision of the Police Force District Directorate in Košice of 28 October 2015 was arbitrary and insufficiently reasoned.
QUESTIONS TO THE PARTIES
1. In the light of the applicant’s claims and the documents which have been submitted, did the domestic authorities meet their positive obligation under Articles 3 and 8 of the Convention to carry out an effective investigation into the allegations of sexual abuse and to protect the applicant’s integrity and private life (see, for example, M.C. v. Bulgaria, no. 39272/98, § 153, ECHR 2003‑XII; or, mutatis mutandis, C.A.S. and C.S. v. Romania, no. 26692/05, §§ 68-72, 20 March 2012)?
2. Also, did the domestic authorities, in their decisions, meet their obligations under Article 3 to weigh up properly the allegedly conflicting evidence, and did they make consistent efforts to establish the facts by engaging in a context-sensitive assessment (see, mutatis mutandis, C.A.S. and C.S. v. Romania, no. 26692/05, § 78, 20 March 2012)?
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