Information Note on the Court’s case-law 248

February 2021

X and Others v. Bulgaria [GC] - 22457/16

Judgment 2.2.2021 [GC]

Article 3

Effective investigation

Failure to use all reasonable investigative and international cooperation measures while examining sexual abuse in an orphanage alleged after children’s adoption abroad: violation

Facts – The applicants, who were born in Bulgaria, are three siblings. In June 2012, aged 12, 10 and 9 respectively, they were adopted by an Italian couple. The applicants subsequently revealed to their adoptive parents accounts of sexual abuse during their placement in an orphanage in Bulgaria.

Both directly and through a helpline association, the parents lodged complaints about the abuse with the Italian authorities, notably through the Italian Commission for Intercountry Adoption (“the CAI”), and the Milan public prosecutor’s office. Those authorities transmitted the complaints to the Bulgarian authorities. The applicant’s parents also contacted an Italian investigative journalist, who published an article alleging large-scale sexual abuse of children in the orphanage, which received media attention in Bulgaria. Subsequent to those actions, three separate, preliminary investigations were opened in Bulgaria in respect of the reported allegations. All three were discontinued for lack of evidence that a criminal offence had been committed, a decision which was upheld by the superior domestic courts.

In a judgment of 17 January 2019 (see Legal Summary ), a Chamber of the Court held, unanimously, that there had been no violation of Articles 3 (substantive and procedural limbs) and 8 of the Convention. The case was referred to the Grand Chamber at the applicants’ request.

Law – Article 3: The Court considered the complaints in question more appropriate to examine under Article 3 alone.

(a) Positive obligations to put in place appropriate legislative and regulatory framework (substantive limb)

The existence in the respondent State of criminal legislation aimed at preventing and punishing child sexual abuse had not been called into question by the applicants, and the relevant provisions of the Bulgarian Criminal Code appeared apt to cover the acts complained of in the present case. States additionally had a heightened duty of protection towards children deprived of parental care and placed in the care of a public institution, and who were therefore in a particularly vulnerable situation. In that regard, the respondent State had maintained that a number of mechanisms to prevent and detect ill-treatment in children’s facilities had been put in place. Although the applicants contested the actual existence and effectiveness of some of these measures and mechanisms, there had not been sufficient information to establish that. Nor had it been established that there had been a systemic issue related to sexual abuse of young children in residential facilities, such as to require more stringent measures on the part of the authorities.

(b) Positive obligation to take preventive operational measures (substantive limb)

The applicants had been in a particularly vulnerable situation and had been placed in the sole charge of the public authorities. In those circumstances, the obligation to take preventive operational measures where the authorities had, or ought to have, knowledge of a risk that a child might be subjected to ill‑treatment, was heightened in the present case and required them to exercise particular vigilance.

The domestic investigations had not found it established that the staff members of the orphanage or any other authority had been aware of the alleged abuse. In those circumstances, and in the absence of evidence corroborating the assertion that the first applicant had reported abuse to the director of the orphanage, the Court did not have sufficient information to find that the Bulgarian authorities had known, 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 against such a risk.

Conclusion: no violation (unanimously).

(c) Procedural obligation to carry out an effective investigation

In cases potentially involving child sexual abuse, the procedural obligation under Article 3 to conduct an effective investigation had to be interpreted in the light of the obligations arising out of the other applicable international instruments, and more specifically the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“Lanzarote Convention”; see particularly Articles 12-14 and 30-38).

The authorities’ obligation to conduct a sufficiently thorough investigation was triggered as soon as they received arguable allegations of sexual abuse. That obligation could not be limited to responding to any requests made by the victim or leaving it to the initiative of the victim to take responsibility of any investigatory procedures. As early as February 2013, the Bulgarian authorities had received more detailed information from the Milan public prosecutor’s office concerning the applicants’ allegations. That information had showed that the applicants’ psychologists had deemed their allegations to be credible, and that a number of Italian bodies had considered them sufficiently serious to warrant an investigation. Accordingly, the Bulgarian authorities had been faced with arguable claims triggering the procedural duty under Article 3.

The Bulgarian authorities had taken a number of investigative steps. The Court therefore had to examine whether the investigations had been sufficiently effective. There was no reason to call into question the promptness and expedition with which the Bulgarian authorities had acted, nor the independence of the State Agency for Child Protection (“the SACP”), which had carried out a number of those steps.

Although the applicants’ parents had not sought to be involved in the investigation, it was regrettable that the Bulgarian authorities had not attempted to contact them in order to provide them with the necessary information and support in good time. They had therefore been prevented them from taking an active part in the various proceedings, and they had been unable to lodge an appeal until long after the investigations had been concluded (see in this connection Article 31 § 1 (a), (c) and (d) of the Lanzarote Convention).

Regarding the thoroughness of the investigation: experts from relevant authorities and the police had carried out on-site checks, consulted files, including medical files of the applicants and other children who had lived at the orphanage during the period in question, and interviewed various staff, professionals, and individuals who might have been the alleged perpetrators. Interviews had also been conducted with children living in the orphanage, including some of the children mentioned by the applicants: although those had not always been adapted to the children’s age and level of maturity, and they had not been video-recorded (see in this connection Article 35 §§ 1 and 2 of the Lanzarote Convention). One of the children had had to be interviewed a second time by the police.

Further, the authorities had apparently neglected to pursue some lines of inquiry which might have proved relevant, and to take certain investigative measures:

i) International cooperation

If the Bulgarian authorities had had doubts as to the credibility of the applicants’ allegations, they could have attempted to clarify the facts by requesting to interview the applicants and their parents. As professionals who had heard the children’s statements, the various psychologists who had spoken with the applicants in Italy would also have been in a position to have provided relevant information. While it might not have been advisable for the Bulgarian authorities to interview the applicants – given the risk of exacerbating any trauma, and risks of inefficacy associated with the lapse of time and the tainting of evidence by overlapping memories or outside influences – the authorities should have assessed the need to request such interviews. Guided by the principles set out in international instruments, the authorities could have put measures in place to assist and support the applicants in their dual capacity as victims and witnesses, and could have travelled to Italy in the context of mutual legal assistance or requested the Italian authorities to interview the applicants again. As reflected in the Lanzarote Convention and the Court’s case-law ( Güzelyurtlu and Others v. Cyprus and Turkey [GC], 36925/07 , 29 January 2019), in transnational cases, the procedural obligation to investigate might entail an obligation to seek the cooperation of other States for the purpose of investigation and prosecution. In the present case, although the Italian public prosecutor had declined jurisdiction on the grounds that there was an insufficient jurisdictional link with Italy in respect of the facts, it would have been possible for the applicants to be interviewed under the judicial cooperation mechanisms existing within the European Union in particular. Even if they had not sought to interview the applicants directly, the Bulgarian authorities could at least have requested from their Italian counterparts the video recordings of the applicant’s accounts – which had been obtained by psychologists and through an interview with the Italian public prosecutor for minors – for the purpose of assessing their credibility.

Similarly, given the absence of medical certificates, the Bulgarian authorities could, again in the context of international judicial cooperation, have requested that they underwent a medical examination.

ii) Investigating abuse of and by other children

The applicants’ accounts and relevant evidence had also contained information concerning other children who had allegedly been victims of abuse, and children alleged to have committed abuse, some of which amounted to ill-treatment. The authorities had therefore had a duty to shed light on those alleged facts. However, the authorities had not attempted to interview the children named by the applicants who had left the orphanage in the meantime.

iii) Other investigative measures

In view of the nature and seriousness of the alleged abuse, investigative measures of a more covert nature, such as surveillance of the orphanage perimeter, telephone tapping or the interception of telephone and electronic messages, as well as the use of undercover agents, should have been considered. Such measures were provided for in the Lanzarote Convention and widely used across Europe in such investigations. While the guarantees contained in Article 8 (respect for privacy) might legitimately place restraints on the scope of investigative action, such measures appeared appropriate and proportionate in the present case, given the applicants’ allegations of involvement of an organised ring and the fact that identifiable individuals had been named. Measures of this kind could have been implemented progressively, beginning with those having least impact on individuals’ private lives.

While noting that the Lanzarote Convention encouraged the use of dedicated helplines as a means of reporting abuse, the Court regretted the lack of response of the SACP, following the applicants’ father’s email and the report of the Nadja Centre (a Bulgarian foundation specialising in child protection) in November 2012. It had been open to them, within a framework guaranteeing anonymity to the potential victims, to request all necessary details from the Centre, which would have made it possible to identify the orphanage in question and carry out covert investigative measures even earlier.

Further, despite allegations that a photographer had produced images, the investigators had not considered searching his studio and seizing the media on which they might have been stored. More generally, the seizure of media used by other relevant individuals might have made it possible, if not to obtain proof of the applicants’ alleged abuse, which had occurred several months previously, then at least to obtain evidence concerning similar abuse of children.

iv) Overall

By conducting the investigations, the Bulgarian authorities had formally responded to the requests of the Italian authorities and, indirectly, to those of the applicants’ parents. However, the investigating authorities – who, in particular, had not made use of the available investigation and international cooperation mechanisms – had not taken all reasonable measures to shed light on the facts and had not undertaken a full and careful analysis of the evidence before them. Instead, they had confined their investigative 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. Indeed, the reasons given for the authorities’ decisions to close the investigations appeared to show that, rather than clarifying all of the relevant facts, the investigating authorities had sought to establish that the applicants’ allegations had been false.

The Court also noted and considered it unacceptable that the President of the SACP had delivered a televised statement, even before the findings of the authority’s first inspection, in which he had accused the applicants’ parents of slander, manipulation and inadequate parenting, and that a group of MPs visiting the orphanage had adopted a similar attitude. Such statements had inevitably undermined the objectivity – and hence credibility – of the enquiries conducted by the SACP and of the institution itself.

In sum, the omissions observed were sufficiently serious to consider that the investigation had not not been effective for the purposes of Article 3, interpreted in the light of other applicable international instruments and in particular the Lanzarote Convention.

Conclusion : violation (nine votes to eight).

Article 41: EUR 12,000 each in respect of non-pecuniary damage.

(See also O’Keeffe v. Ireland [GC], 35810/09, 28 January 2014, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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