25 Jun Croatian authorities have taken the necessary measures to protect the rights of a child – alleged victim of sexual abuse

In the case of A and B v. Croatia (application no. 7144/15, 20/06/2019) the European Court of Human Rights held, by four votes to three, that there had been no violation of the procedural aspects of Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights. 

The case concerned a complaint that the Croatian authorities had failed to provide a proper response to allegations of child sexual abuse. 

The Court held that A (mother) could not claim to be a victim of a violation of her rights. The case therefore had to be considered in relation to B alone (daughter). Furthermore, owing to the relationship between A and the alleged perpetrator and a potential conflict of interests between A and B, the Court asked the Croatian Bar Association to appoint a lawyer to make submissions on behalf of the child.

The Court observed that the complaint by the applicant, B, had three aspects: whether there was an appropriate regulatory and legal framework to protect her rights under these two Articles of the Convention; whether the authorities had applied that framework in a way which had met their procedural obligations to carry out an effective investigation; and whether the authorities had taken sufficient consideration of her rights as a child victim of sexual abuse. 

The Court noted that Croatian criminal law prohibited the sexual abuse alleged in the case as an aggravated offence when compared to the same acts against adults. The Code of Criminal Procedure also contained a provision ensuring that a child victim of a criminal offence had special rights. The Court found that overall Croatia had an adequate legal and regulatory framework for the specific circumstances of the case. 

When applying such criminal-law mechanisms, the authorities had had to address the particular vulnerability of the applicant as a young child who had allegedly been a victim of sexual abuse by her father, taking her best interests as a primary consideration and affording protection to her victim’s rights and avoiding secondary victimisation. The Court observed that A had informed the police and a social welfare centre of her concerns that her daughter had been sexually abused. The child was later seen by a team of experts and a gynaecologist. No evidence of sexual abuse was found after these steps. Subsequent psychological reports had been inconclusive: a report in November 2014 had stated that B had described sexualised behaviour by the father towards her and it had advised continued therapy, while a report in December that year had established that B had been exposed to content and/or conduct of a sexualised nature by an adult, which had resulted in her overtly sexualised manner.

The authorities had interviewed witnesses, including B’s teachers, members of the family, and the father, however, they had ultimately been faced with two conflicting accounts, little direct evidence and three inconclusive expert opinions. The prosecution authorities had decided that there was insufficient evidence for a prosecution and the Court stated that it was neither in a position to draw a conclusion on the issue nor could it substitute its own findings of fact for those of the national authorities, which were better placed to assess the evidence and the importance of witness testimony. 

The Court found no culpable disregard, discernible bad faith or a lack of will on the part of the police or the prosecution in performing their duty under the law. It was also satisfied that the authorities had done everything that could reasonably have been expected of them to protect the rights of the applicant and to act in her best interests. There had therefore been no violation of the procedural aspect of Article 3 and Article 8 of the Convention in the particular circumstances of the case.

References from the official website of the European Court of Human Rights