13 Feb Ineffective investigation into allegations of sexual abuse in an orphanage

In the case of X and Others v. Bulgaria (application no. 22457/16, 02.02.2021) the European Court of Human Rights held that that there had been a violation of the procedural limb of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention and no violation of the substantive limb of Article 3 of the European Convention on Human Rights. 

The case concerned allegations of sexual abuse committed against three children in a Bulgarian orphanage prior to their adoption by an Italian couple in June 2012.

The Court found that the applicants, owing to their young age and their status as children left without parental care and placed in an institution, had been in a particularly vulnerable situation, and that the sexual abuse and violence to which they had allegedly been subjected, if established, had been sufficiently serious to come within the scope of application of Article 3 of the Convention. 

The Court held, in particular, that it did not have sufficient information to find that the Bulgarian authorities knew or ought to have known of a real and immediate risk to the applicants of being subjected to ill-treatment, such as to give rise to an obligation to take preventive operational measures to protect them against such a risk. Accordingly, there had been no violation of the substantive limb of Article 3 of the Convention.

However, the Court considered in particular that the investigating authorities had not made use of the available investigation and international cooperation mechanisms with the Italian authorities. There was ample evidence submitted to the Bulgarian government, such as footage and photographs, documents containing certain precise details and naming individuals as perpetrators of alleged abuse, reports from a psychiatrist, evidence of abuse of other children in an orphanage, and so on.

While it was true that it might not have been advisable for the Bulgarian authorities to interview the applicants given the risk of exacerbating whatever trauma they may have suffered, the Court considered that in these circumstances the Bulgarian authorities should have assessed the need to request such interviews. The decisions given by the prosecuting authorities did not, however, contain any reasoning in this regard and the possibility of questioning the applicants appeared not to have been considered, presumably for the sole reason that they had not been living in Bulgaria.

Furthermore, despite the fact that three investigations had been opened following the publication of the press articles and the requests from the Italian authorities, the Bulgarian authorities had confined their efforts to questioning the people present in the orphanage or in the vicinity, and had closed the case on the sole basis of that investigative method.

The Court noted that the investigating authorities had reduced their investigation to finding that the applicants’ allegations were false. In the Court’s view, all these considerations suggested that the investigating authorities had not taken all reasonable measures to shed light on the facts of the present case and had not undertaken a full and careful analysis of the evidence before them. The omissions observed appeared sufficiently serious for it to be considered that the investigation carried out had not been effective for the purposes of Article 3 of the Convention, interpreted in the light of the other applicable international instruments and in particular the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“Lanzarote Convention”). There had therefore been a violation of the procedural limb of Article 3 of the Convention.

Reference from the European Court of Human Rights