Communicated on 23 September 2015

SECOND SECTION

Application no. 7144/15 A and B against Croatia lodged on 3 February 2015

STATEMENT OF FACTS

The applicants, A and B , are Croatian nationals . The President of the Section granted the ir request for their identity not to be disclosed to the public (Rule 47 § 4) and for confidentiality o f the case file (Rule 33 § 1 of the Rules of Court) . The applicants are represented before the Court by Ms I. Bojić , a lawyer practising in Zagreb .

The circumstances of the case

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

According to the first applicant, A, on an unspecified date in June 2014 her daughter B, the second applicant, then five years old, was playing with her genitals in front of her and told her that she had been playing like that with her father, C, every evening before going to bed.

On 11 June 2014 A called “the Brave Telephone”, a children ’ s helpline. On their advice, the following day she called the Polyclinic for the Protection of Children in X (hereinafter “the Polyclinic”), where an appointment was scheduled for 20 June 2014.

On 14 June 2014 when B was with her maternal aunt, she asked her to “touch [herself] down there” and told the aunt “daddy has been playing with [her] so as to touch [her] on the genitals with his hands, which [she] told [her] paternal grandparents and [her] grandfather shouted at [her] father”. B also told her aunt that C had been singing songs to her. The lyrics of the songs had erotic content.

On 16 June 2014 A attended the Y Police Station to report that C had been sexually abusing their child, B, aged five. A was interviewed by a police officer. According to the report, A said that about two and half years previously she had found her daughter naked from the waist to the knees in a bed with her partner, C, who was asleep. C ’ s face had been close to the child ’ s genitals. A had woken him up and asked him why B was naked. C had replied that she had probably taken her clothes off while he had been asleep. Since there had been no other suspicious signs in B or C ’ s behaviour at the time, A had not taken any action. However, in the spring of 2014, when A, B, and A ’ s sister had been out in public, B had suddenly grabbed a woman she did not know by her genitals. Around then C had been taking care of B most of the time. Also, on 14 June 2014 A had left B with her other sister. When she had returned after about an hour, her sister had told her that B had said that C had been “touching [her] down there”, and that she had heard B singing some songs about “a bunny entering a hole”. B had said that she had told her paternal grandparents all this, and that her grandfather had “yelled at daddy not to do things like that any more ”.

On the same day the police interviewed D and E, A ’ s siblings. D confirmed A ’ s allegations, and said that she had recorded some of B ’ s behaviour and statements on her mobile telephone.

E said that one day at the end of June 2014 B had started to behave aggressively towards him, had wanted to kiss him on the mouth and had tried to touch his genitals. He had told D about it.

On the same day, C ’ s father reported to the Y Welfare Centre that A had been “emotionally and physically abusing B”.

On 17 June 2014 the police interviewed a paediatrician who had treated B. She said that on 16 June 2014 A had approached her very upset and had wanted to discuss the possible sexual abuse of B by her father, C. The doctor said that C had been taking care of B most of the time, and that when she needed medical assistance, he had been the one who had brought her to see her. The doctor described B as a communicative, bright and intelligent child and said that she had not noticed any signs of any kind of abuse.

On the same day the police interviewed two teachers in the kindergarten B had been attending. They both described her as a normal, communicative child. Neither of them had noticed any signs of abuse.

On the same day the first applicant also reported the alleged sexual abuse of B by C to the Y Social Welfare Centre. A report was drawn up and on the same day forwarded to the Y Police.

On 2 July B was seen by a gynaecologist. No signs of sexual penetration or an injury were observed.

On 4 July 2014 a multidisciplinary team from the Polyclinic issued a report on B, which does not state the dates she was seen by any of the specialists. According to the first applicant, on each occasion B was examined or observed by the multidisciplinary team, both she and C were present. The relevant part of the report reads:

“During the examination , the girl did not show clear signs of being sexually abused. The girl did not describe contextually characteristic situations and her affective response did not correspond to the verbally expressed content . There are elements which indicate pressure by the mother and the possibility of inducement c an not be excluded, which presents a risk of emotional abuse.

The assessment of the father ’ s possible inappropriate behaviour is aggravated by the family climate of fighting , the relationship between the parents, the heteroamnestic information obtained, the different information given by the parents , as well as the mother being overwhelmed by her own experience and mistrust towards the girl ’ s father.

...

It is recommended that the girl receives supportive supervision o ver her further development. [It is also recommended] that the parents take part in counselling and that assistance be provided to the family through supervision o ver parental care to ensure the girl grows up in a safe and stable environment .”

On 11 August 2014 the Y police interviewed C. He denied any sexual abuse of B and alleged that A had been physically punishing her, about which he had lodged a criminal complaint.

On 13 August 2014 the Y Municipal Court issued a preliminary measure allowing A to “exercise all parental rights” over B, owing to the allegations of sexual abuse by her father, C.

On 20 August the Y police interviewed C ’ s parents, aunt and brother-in-law. The parents had not witnessed any incidents of C sexually abusing B, but both described incidents of A physically abusing B. The aunt and brother-in-law had heard from A about the alleged sexual abuse of B by C, but had not witnessed any incidents of that kind.

On 22 August 2014 the Y police confiscated a USB stick from C.

On 25 August 2014 A ’ s mother approached the Y police and expressed her concerns about a meeting between B and C, ordered by the Y Social Welfare Centre for 28 August 2014. She said that at the mention of the meeting with C, B had thrown herself to the ground and started crying and being aggressive towards her toys, pets and relatives. She also reported B ’ s overtly sexual behaviour.

On 27 August 2014 the Y Welfare Centre applied a “supervision over parental care” measure in respect of both A and C.

On 5 September the Y Welfare Centre sent its report on the applicants and C to the Y Municipal Court. It suggested that for the time being care of B be granted to A.

On 19 September 2014 the Y Municipal Court gave custody of B to the child ’ s mother A and ordered that contact between C and B take place between 4 and 6 p.m. every Tuesday .

On 6 October 2014 the Y police interviewed B ’ s babysitter, who described incidents of sexual behaviour by B.

On 10 November 2014 B was seen by a psychiatrist, Z.K. The relevant part of her report, drawn up on the same day, reads:

“ ... In the drawing of her family, the father is described as mean and doing things that he should not. She says that the father took her clothes off and pinched her behind and genitals on three occasions, that she told him not to do it, but he had always replied that he did not care. She also says that daddy used to kiss her on the mouth but has stopped doing it. She says that she has not had similar experiences with anyone else. The mother says that the girl behaves in an overtly sexual manner, tries to kiss other people on the mouth (her nannies, mother and uncle). Th e mother says that the girl wants to touch other people on the behind, inserts her fingers in her underwear and then in to other people ’ s mouths and that she had inserted her finger into her cat ’ s rectum. The girl denies remembering any of this.

...

During examination the girl attempt ed to make inappropriate contact with the doctor writing the report. She stopped playing with toys and approache d him from behind , trie d to hold his upper arm and lean t her head against it. This behaviour is regarded as inappropriate in the actual situation.

...”

On 17 November 2014 A ’ s lawyer asked the Z State Attorney ’ s Office to commission a forensic expert report on B.

On 1 December 2014 B was seen by a psychologist, Z.G., of the A.B.R. Polyclinic. The conclusions of her report, drawn up on the same day, read:

“1. The child expresses a lack of distance and erotic closeness with people she does not know . On the basis of her playing and drawings and the information given by both parents, it could be concluded that the child expresses a premature interest in sexuality which is repeated constantly, so it cannot be seen as behaviour appropriate for [the child ’ s] age, but as behaviour which indicates [the existence of] trauma.

2. It is clear that the child is emotionally and socially neglected because of the severe conflict between the parents over a longer period. The neglect is so severe that both parents are responsible for it. It is difficult to tell to what extent and in what way such a parental approach has contributed to the observed behaviour of the child, that is to say her premature and intense interest in sexuality and her sexual behaviour.

3. I therefore consider that the child, apart from being educationally and emotionally neglected, has also been exposed to inappropriate content and/or conduct by an adult with sexual connotations.

4. At the time of examin ation the child was not testable, so the projective techniques which could better explain the parents ’ influence on the observed behaviour could not have been applied.

5. Before deciding which parent is better placed to have custody of the child, an assessment of [ the ir] capability should be carried out.

6. The child should certainly [receive] intens iv e treatment so as to diminish or remove the obstacles from the emotional and social sphere.”

On 31 December 2014 the Z State Attorney ’ s Office informed A and her lawyer that the case was closed. The relevant part of the letter sent to them reads:

“ ... after careful assessment of the ... documentation ... , even though it has been concluded with certainty that child B shows erotic behaviour inappropriate for her age, no facts and circumstances have been established which would clearly indicate that the cause of this behaviour is the sexual abuse of child B by the suspect C.

S ince in this case reasonable doubt has not been established that C has sexually abused child B , or that his behaviour amounted to any other criminal act liable to State-assisted prosecution, there is therefore no basis for the State Attorney ’ s Office to process [th e case ] further.”

On 30 January 2015 the Z State Attorney ’ s Office issued a formal decision not to prosecute. The decision describes in detail all the evidence gathered and its concluding part, in so far as relevant, reads:

“On the basis of the allegations contained in the criminal complaint, the documentation obtained during the enquiry and [that] submitted by the complainant ... it has been established that there were no signs of either old or fresh injuries on child B ’ s body and genitals ... that child B shows a premature interest in sexuality and erotic behaviour inappropriate for her age , and that both parents should receive the appropriate psychotherapeutic treatment. The fact that child B shows a premature interest in sexuality and erotic behaviour inappropriate for her age has been established in interviews with complainant A, [the child ’ s maternal grandmother, A ’ s siblings] D and E , and by the opinions given by experts of various institutions ... However, even though the A.B.R. Pol y clinic ’ s report ... shows that the child was exposed to inappropriate content and/or conduct by an adult with sexual connotations, the fact is that none of the four institutions which had previously treated the child, including the A.B.R. Pol y clinic, ha s established that the cause of this erotic behaviour ... is sexual abuse by her father C. The report by the Pol y clinic ’ s multidisciplinary team ... indicates that there are no clear signs of sexual abuse. On the other hand, elements showing pressure by the mother were present. This could not exclude the possibility of the girl ’ s inducement ... which represents emotional abuse. Furthermore, elements of pressure by the mother on the child were observed by other experts ... It has been established that the conduct of the mother, who is well informed about the manner in which sexually abused children are treated and monitored , led the child to give statements which were often contradictory or untrue, which is why it is no longer possible to obtain a truthful statement from the child.”

The decision then concludes that, taking into account all the facts and circumstances, it was not possible to conclude that C had committed any criminal offence liable to State-assisted prosecution.

The applicants were also instructed of the possibility to lodge within eight days a request for an investigation with a competent county court ’ s investigation judge.

The applicants complied with the instruction on 26 February 2015 and submitted a request to an investigation judge of the Z County Court seeking to have an investigation opened in connection with the allegations of sexual abuse of the second applicant by her father.

They also lodged a constitutional complaint against the decision of the Z State Attorney ’ s Office of 30 January 2015. It was declared inadmissible by the Constitutional Court on 28 April 2015 on the ground that the impugned decision did not amount to an act by which “a competent court has decided on the merits about a right or an obligation of the applicants or a criminal charge against them”.

COMPLAINTS

The applicants complain under Articles 3, 8 and 13 of the Convention that the national authorities have not properly responded to the allegations of sexual abuse of the second applicant by her father, and that they have no effective remedy in this regard.

QUESTIONS TO THE PARTIES

1. Having regard to the State ’ s procedural obligations under Articles 3 and 8 of the Convention, was the manner in which the criminal law mechanisms were applied in the present case by the domestic authorities in breach of these two A rticles of the Convention?

2. Are the mechanisms provided by Croatian law on child protection from sexual abuse effective for the purposes of Article 3 and 8 of the Convention, taken alone and in conjunction with Article 13?

3 . Have the State authorities complied with their positive obligations under Article 8 of the Convention in respect of the findings of the relevant experts that the second applicant had been seriously neglected and had serious behavioural problems? In particular, has the relevant counselling, as recommended by the team of experts in their report of 4 July 2014, been provided to the child and the parents? If so, the Government are invited to submit all relevant evidence concerning the experts involved in such counselling, its frequency and content as well as reports on its progress.