Communicated on 12 December 2017

SECOND SECTION

Application no. 22597/16 R.B . against Estonia lodged on 19 April 2016

STATEMENT OF FACTS

The applicant, R.B., is an Estonian national who was born in 2007. She is represented before the Court by Mr H. Kuningas , a lawyer practising in Tartu.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was a victim in criminal proceedings. On 19 March 2012 criminal proceedings were initiated against her father for repeated rape of a child under the age of 18 and repeated sexual assault, other than rape, of a child under the age of 18. The acts had allegedly taken place on unspecified dates between 2009 and 2012 when the applicant was between two and four years old.

The applicant, who was approximately four and a half years old at the time, was heard during the pre-trial proceedings and the relevant recordings were made available to the accused so that he could put questions to the applicant. The accused did not avail himself of that possibility. During the criminal proceedings the applicant ’ s mother and several other persons (of whom one was a paediatric psychiatrist who had seen the applicant; the other witnesses ’ relationship with the applicant is unknown) were questioned, a forensic expert opinion about the victim ’ s possible physical injuries as well as forensic psychiatric and psychological expert opinions concerning both the victim and the accused were ordered.

On 4 November 2014 the County Court, relying on the evidence presented, convicted the applicant ’ s father as charged.

On 18 March 2015 the Court of Appeal upheld the conviction.

On 23 October 2015 the Supreme Court quashed the judgments of the County Court and the Court of Appeal and acquitted the applicant ’ s father. According to the reasoning of the Supreme Court, the lower-instance courts had violated procedural law and had based the conviction on inadmissible evidence.

Most importantly, the Supreme Court pointed out that the County Court and the Court of Appeal had relied on the statements given by the victim in the pre-trial proceedings, despite the fact that she had not been made aware of the obligation to speak the truth (Article 66 § 3 of the Code of Criminal procedure, Kriminaalmenetluse seadustik , hereinafter CCrP ) and had not been advised that she could refuse to give testimony against her father (Article 71 § 1(1) of the CCrP ). The Supreme Court stressed that while the age of a witness may be taken into consideration when questioning him or her, the obligation to explain the need to tell the truth could not be disregarded, as this bore weight on the credibility of the testimony. It further noted that there was no exception for minors from the general rule according to which one could refuse to give testimony for personal reasons. The Supreme Court pointed out that as the victim had been heard during the pre-trial proceedings and not in court, this shortcoming could not be remedied by remitting the case to the lower-instance courts. It then concluded that as the judgments of the lower-instance courts had been primarily based on the applicant ’ s testimony, and this evidence was to be deemed inadmissible due to the failure to inform the victim of her rights and obligations, this inevitably required that the accused be acquitted of the charges against him.

In addition to the aforementioned shortcoming, the Supreme Court pointed out other deficiencies in the lower-instance courts ’ judgments.

Firstly, the first-instance court and Court of Appeal had, contrary to the domestic procedural law (Article 66 § 2 1 of the CCrP ), treated the statements given by a number of witnesses who had not been direct witnesses to any of the alleged offences as independent evidence.

Secondly, the Court of Appeal had referred in its reasoning to the explanations given by the applicant during preparation of an expert opinion, despite the fact those could not be used as a victim ’ s statement.

Thirdly, the lower-instance courts had erroneously equated the oral report of a criminal offence as recorded by the police authorities ( suuline kuriteoteade ) with the report of the victim ’ s testimony ( kannatanu ülekuulamise protokoll ). The Supreme Court added that this could be done only if the victim had been heard at the same time as the drawing up of the offence report and had then been duly informed of his or her rights and obligations. As this had not been done, relying on such a report as evidence amounted to a violation of procedural law.

Lastly, the Supreme Court considered that the courts had also failed to take all circumstances into consideration in assessing the credibility of the victim ’ s testimony. In particular, they had not assessed the possible effect of the time that had lapsed between the alleged events and the report of a criminal offence on the memories of those events and the possible effect of several psychological consultations on the content of the victim ’ s testimony. The Supreme Court also considered that attention should be paid to the terminology used by the victim and to other circumstances casting doubt on whether her statements might have been influenced by other people.

The decision of the Supreme Court was final and was not amenable to appeal.

It appears that at the time of submitting the application, proceedings were ongoing between the parents over the right of access to the applicant. The outcome of those proceedings is unknown.

COMPLAINT

The applicant complains that the authorities failed to observe criminal procedural law and thereby to investigate the alleged offences effectively, amounting to a violation of their positive obligations under Articles 3 and 8 of the Convention.

QUESTION TO THE PARTIES

Did the State authorities in the present case comply with their posi tive obligations under Articles 3 and 8 of the Convention to conduct an effective investigation into the alleged rape and sexual abuse of the applicant?