FIFTH SECTION
Application no. 16605/09
N.D.
against Slovenia
lodged on 24 March 2009
STATEMENT OF FACTS
The applicant, Ms N.D., is a Slovenian national. The President of the Chamber acceded to the applicant’s request not to have her name disclosed to the public (Rule 47 § 3). She is represented before the Court by Ms B. Zidar, a lawyer practising in Celje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background of the case
The period in which the events complained of have occurred began in 1992, when the applicant was six years old, and ended in 1994.
On an unspecified date after 27 March 1992 the applicant was approached by her eldest uncle J.D., then aged nineteen, who was part of the applicant’s extended household. According to the applicant’s version of events, J.D. partially undressed both of them, touched the applicant and had a full sexual intercourse with her. Thereafter J.D. engaged the applicant in sexual intercourse on a regular basis, approximately twice a week.
On an unspecified date after 20 March 1994 the applicant together with her mother, sister and stepfather moved to a nearby village, after which she would visit her grandparents on the weekends and during the holidays. On these occasions J.D. apparently touched her in an inappropriate manner, and also attempted to have sexual intercourse with her once again.
On 23 November 2000 J.D. drove the applicant in his car and again touched her inappropriately.
On 24 November 2000 the applicant told the school councillor of J.D. having sexually abused her, but did not explicitly mention that they had had sexual intercourse. The school councillor informed the local social work centre about the suspicion of sexual abuse of a minor, and the social worker informed the police.
2. The police investigation
On 24 November 2000 the police officers came to the applicant’s school and took a statement in which the applicant gave a detailed account of the events. The applicant was also examined by a gynaecologist.
In the next days the police questioned J.D., the applicant’s mother, sister, stepfather and grandfather, as well as the applicant’s doctor and school councillor.
On 7 December 2000 the police sent a criminal complaint against J.D. to the District State Prosecutor’s Office in Celje, on account of sexual assault on a person younger than fifteen years under Article 183 § 3 of the Criminal Code. The charge was later modified to sexual assault on a person younger than fourteen years under Article 103 § 3 of the Criminal Code of the Socialist Republic of Slovenia, the legislation applicable at the time of the events at issue.
3. The judicial investigation
On 29 December 2000 the district state prosecutor requested that the investigation department of the Celje District Court open a judicial investigation against J.D. for continuous sexual assault on a child.
On 28 March 2001 J.D. was summoned to appear before the investigating judge of the Celje District Court. J.D. attended the interrogation with his defence counsel and denied the charges. He stated that he had homosexual tendencies and was not attracted to the opposite sex.
On 29 March 2001 the investigating judge issued a decision to open a judicial investigation against J.D. for continuous sexual assault on a child.
On 9 May 2001 the district state prosecutor requested that the investigation against J.D. for continuous sexual assault on a child be expanded to the applicant’s younger sister, S.D.
On 16 May 2001 the investigating judge interrogated the applicant and S.D., their mother and the school councillor whom the applicant had first informed about the sexual assaults. In her submissions to the investigating judge the applicant, who was at the time treated in a paediatric hospital for psychological trauma and peptic ulcer, repeated the story she told the police in some more detail.
The investigating judge appointed two experts in clinical psychology to prepare reports on the psychological state and characteristics of the applicant and J.D., respectively.
On 7 November 2001 the first expert submitted her report in which she stated that the applicant exhibited characteristics typical of children who have been sexually abused, which can be defined as posttraumatic stress disorder syndrome.
On 3 April 2002 the other expert submitted his report on J.D., in which he established that the combination of different factors, such as sexual insecurity and confusion and the increased strength of his sexual impulses could have proven too provocative for J.D. to be able to comply with the norms of socially acceptable sexual behaviour.
On 28 May 2002 the Celje District State Prosecutor indicted J.D. for sexual assault on a person younger than fifteen years.
4. The trial
On 14 April 2008 the Celje District Court held a hearing, from which the public was excluded on the grounds of protection of personal life of the applicant and J.D. The court heard J.D., who denied the charges and stated that his nieces were never entrusted to his care.
On 22 April J.D.’s defence attorney requested the appointed expert in clinical psychology who examined J.D. to complete his report.
On 12 June 2008 the court held another hearing before a different panel, therefore the trial started anew. The court read the submissions of J.D. and heard the applicant, while S.D. and the applicant’s mother used the right of exemption from testimony based on their family relations with J.D. The court also heard the school councillor and granted the defence’s request for additional evidence to be taken from the appointed expert in clinical psychology with respect to J.D. The applicant was informed of her right to make a civil claim for compensation against J.D., which she did by requesting an amount of 22,000 Euros (EUR).
On 27 June 2008 the court submitted additional questions to the expert in clinical psychology.
On 17 September 2008 the applicant submitted a request for free legal aid which was granted on 16 October 2008. The court designated an attorney to represent the applicant in these proceedings henceforth.
The third hearing was scheduled for 5 December 2008 and then adjourned until 18 December 2008.
On 18 December 2008 the trial started anew again, as the hearing had been adjourned for more than three months and was held before a different panel. J.D. repeated his plea of not guilty and answered some additional questions. The applicant declared that it would be a large burden on her to give another account of the events and that she stood by her previous statements. However, she provided some additional clarifications. The court also heard the expert in clinical psychology who had submitted the report on J.D.
On 29 January 2009 the court held the fourth hearing in which the school councillor was heard again. The court decided to appoint an expert in psychiatry to assess whether, at the material time, J.D. was able to understand the meaning of his actions and control this behaviour.
On 4 February 2009 the applicant increased her civil claim for compensation to 53,000 EUR.
On 10 February 2009 the applicant lodged a supervisory appeal under the so called “Lukenda Act”.
On 25 February 2009 the court informed the applicant that a hearing was scheduled for 7 April 2009 and thus concluded the consideration of the supervisory appeal.
On 7 April 2009 the court held the fifth and last hearing.
On 8 April 2009 the Celje District Court pronounced judgment, finding J.D. guilty of the charges of continuous sexual assault on a person younger than fourteen years in the period from 27 March 1992 until 1994 with respect to the applicant and sexual assault on a person younger than fourteen years on an unspecified date in the period from 27 March 1992 until 1994 with respect to S.D. The court sentenced J.D. to three years and four months imprisonment. The court did not decide on the applicant’s claim for compensation, but referred her to pursue her claim for compensation in civil proceedings.
J.D.’s defence attorney appealed against the first instance judgment and he also complained against the criminal sanction.
On 10 March 2010 the Celje Higher Court rendered a final judgment in which it dismissed the appeal and upheld the first instance judgment.
B. Relevant domestic law
As regards the protection of minor victims of criminal offences of sexual nature, the Criminal Procedure Act provides that the minors must from the initiation of the criminal proceedings onwards have an attorney to care for their rights, particularly in connection with the protection of their integrity during examination before the court and the enforcement of their claims for compensation. Minor victims who have no attorney are assigned one ex-officio.
Finally, as regards the time-frame for scheduling a hearing in the criminal trial, Article 286 § 2 of the Criminal Procedure Act provides that the presiding judge is to schedule the hearing within two months of the indictment being received. If a hearing is not scheduled within this period, the presiding judge is required to inform the president of the court thereof, and the latter takes the necessary steps to schedule the hearing.
COMPLAINT
The applicant complains under Articles 3 and 8 of the Convention that due to an excessive length of proceedings and inactivity of the domestic authorities the latter failed to respond effectively to her allegations of sexual abuse and therefore acted in breach of their positive obligations inherent in the abovementioned articles. The applicant further complains that she did not receive the necessary assistance as a minor victim in the proceedings, as the domestic authorities failed to appoint her an attorney.
QUESTIONS TO THE PARTIES
1. Having regard to the positive obligations of States inherent in Articles 3 and 8 of the Convention to carry out an effective investigation and prosecution of acts of sexual abuse (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII) and to respect the best interests of minor victims of sexual offences (see C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012), were the proceedings in the present case conducted by the domestic authorities in breach of the procedural requirements of these provisions, in particular with regard to the delays which occurred between the indictment and the beginning of the trial?
2. Was there a violation of the applicant’s right to a trial within a reasonable time as guaranteed by Article 6 § 1 on account of the length of the criminal proceedings against J.D.? The parties are requested to indicate, in particular, which is the period to be taken into account in order to assess the reasonableness of the length of the proceedings at stake, having regard to the fact that the applicant made her claim for compensation only on 12 June 2008.
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