FOURTH SECTION

Application no. 1643/12 M.Å . and J.Å . against Latvia lodged on 27 December 2011

STATEMENT OF FACTS

1. The applicants, M.Š. and J.Š., are Latvian nationals, who were b orn in 1969 and 2005 respectively and live in Rīga . The second applicant is the first applicant ’ s daughter. The applicants are represented before the Court by Ms A. Mazapša , a lawyer practising in Babīte .

2. The President of his own motion decided that the applicants ’ identity is not to be disclosed to the public (Rule 47 § 3).

A. The circumstances of the case

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

4. The applicants are mother and daughter.

1. Divorce and custody proceedings

5. The first applicant started to live with I.Å . in 2004. On 7 March 2005 their daughter, the second applicant, was born. The first applicant had two other daughters, born in 1989 and 1997, who were living in the same household.

6. On 5 April 2007 the first applicant and I.Å . were married.

7. On 24 February 2009 the first applicant filed for divorce. She also asked to be granted sole parental custody ( atsevišķa aizgādība ) of the second applicant. On 26 January 2010 the Rīga Zemgale District Court ( Rīgas Zemgales priekšpilsētas tiesa ) allowed the claim and granted the first applicant sole parental custody of the second applicant. I.Š. was obliged to pay child support ( uzturlīdzekļi ) and was stripped of his contact rights ( saskarsmes tiesības ).

8. On 15 June 2011 I.Å . filed for shared parental custody of the second applicant, reinstatement and definition of his contact rights.

9. Several court hearings have taken place, but these proceedings are currently pending.

10. In the meantime, I.Š. has also applied to the Custodial Court ( Bāriņtiesa ) to have his rights of care ( aprūpes tiesības ) of the second applicant reinstated. These proceedings are currently pending.

2. Criminal proceedings

11. On 4 December 2008 the first applicant approached the State Inspectorate for Protection of Children ’ s Rights ( Valsts bērnu tiesību aizsardzības inspekcija ) and shared her family problems as well as her concerns that I.Š. had sexually abused the second applicant. She received advice to consult a psychologist, which she did on several occasions.

12. On 5 December 2008 the first applicant had a consultation with a lawyer of the Inspectorate, following which the lawyer drafted a complaint to be filed with the police. One week later, however, the first applicant asked the lawyer not to file the complaint yet as she had some doubts concerning these allegations. A few days later, the first applicant asked to proceed with lodging the complaint.

13. On 19 January 2009 the Inspectorate informed a police precinct ( Valsts policijas Rīgas reģiona pārvaldes Rīgas zemgales iecirknis ) about the situation. On 30 January 2009 the criminal proceedings were initiated.

14. Thereafter, the first applicant sought help from a non-governmental organisation Dardedze , which works to prevent child abuse in Latvia and provides direct help to children exposed to abuse. The second applicant underwent three consultations with a psychologist, following which a report was prepared, on 25 February 2009, for the investigating authorities. The psychologist concluded as follows.

“[The second applicant] has undergone three consultations in [ Dardedze centre]. Taking into account that [the second applicant] is only three years ’ old, the possibilities of psychological examination are limited to the level corresponding to her cognitive development - the level of development for thinking and memory, as well as language (pronounces words not clearly). During consultation [the second applicant] ... illustrates and recounts several episodes, which could indicate that she was sexually abused. ... Such behaviour is common in children that have fallen victim of sexual abuse. During consultations and as a result of psychological examination signs of sexual abuse were found and information was received that could indicate sexual abuse by her father. Therefore, the fact cannot be excluded that the second applicant has suffered from a sexual abuse directed against her. For the purposes of this examination no signs of emotional or physical abuse were found. Taking into account the age, emotional and behaviour particularities of [the second applicant], it would not be desirable to involve her in future investigative activities.”

Subsequently, fifteen more psychological consultations took place under a State-approved scheme of help for child victims.

15. The same psychologist gave evidence on 8 April 2009 and on 19 January 2010. She specified that the first applicant had not been present during the consultations. She had found several signs that were commonly described in scientific literature concerning sexual abuse. Methods that had been used during the examination and their sequence were usually unknown to ordinary people; this reduced the possibility for someone to prepare or instruct the second applicant before the consultations. She did not find any signs of influence on the second applicant.

16. On 7 September 2009, after the first applicant ’ s request, a gynaecologist examined the second applicant and found no signs of inflammation or trauma.

17. During the preliminary investigation by the police precinct the following investigative steps were taken:

 On 30 January, 25 March and 9 November 2009 the first applicant gave her testimonies;

 On 11 February, 2 April, 20 April, 27 May, 10 June, 15 June, 16 June, 1 July, 9 September, 11 September, 14 September, 17 September 2009 fourteen witnesses gave their statements;

 On 10 June and 4 September 2009 some witnesses gave their statements again;

 On 4 September and 27 October 2009 I.Š. was questioned as a person against whom criminal proceedings have been initiated; he agreed to undergo a polygraph examination;

 On 7 September 2009 a forensic outpatient psychological examination of the second applicant was ordered;

 On 27 October 2009 a polygraph examination was ordered; I.Š. answered in the negative to questions concerning the alleged sexual abuse and did not show signs of lying.

18. On 2 November 2009 a forensic expert candidate carried out the forensic outpatient psychological examination of the second applicant and prepared report no. 649/2009. One of the conclusions was that the signs of sexual abuse of the second applicant had been discovered and that she had had negative feelings towards I.Š. and had feared him. The forensic expert candidate, however, later testified (see the paragraph below) that children at that age could easily be influenced and that she could not conclude with absolute certainty that the second applicant had been subjected to sexual abuse as alleged. She added that the second applicant ’ s behaviour could have been influenced by family problems such as domestic arguments or alcohol abuse. She admitted that she had largely based her findings on the report of 25 February 2009 and the submissions by the first applicant.

19. On 30 November 2009 the case was forwarded to the competent investigating authority ( Valsts policijas Rīgas reģiona pārvaldes Kriminālpolicijas pārvaldes 1. biroja 4. nodaļa ). The following investigative steps were taken:

 On 23 December 2009 the forensic expert candidate who had carried out the forensic examination of the second applicant gave her statement;

 On 26 February, 17 September, 21 September 2010 six more witnesses gave their statements;

 On 4 March 2010 a forensic outpatient psychological and psychiatric examination of the first applicant was ordered;

 On 6 July 2010 I.Š. was questioned again as a person against whom criminal proceedings have been initiated.

20. On 3 March 2011 criminal proceedings were terminated on the grounds of lack of crime. It was noted, among other things, that the first applicant ’ s allegations lacked credibility and that the forensic report had been largely based on her account of events. As concerns the psychologist ’ s report it was noted that the statements contained therein had not been categorical but rather indicatively expressed. Therefore these reports could not serve as sufficient or convincing evidence for establishing guilt.

21. On 11 April 2011 a supervising prosecutor let that decision stand.

22. On 18 May 2011 a superior prosecutor upheld the decision and the supervising prosecutor ’ s review.

23. On 28 June 2011, with a final decision, the first applicant ’ s complaint was refused.

3. Child ’ s views

24. In its report of 25 February 2009 the psychologist noted the following: “taking into account the age, emotional and behaviour particularities of [the second applicant], it would not be desirable to involve her in future investigative activities” (see also paragraph 14 above).

25. On 15 February 2010 the first applicant requested that the second applicant be questioned, if necessary by a psychologist, and that another psychological examination be made, if necessary.

26. On 23 February 2010 the request was refused referring to the previous report by the psychologist. The inspector considered that “with a view to preventing child ’ s trauma it is necessary to chiefly perform other possible activities. The question concerning possibilities to carry out another psychological examination in Dardedze centre is not within the competence of the investigating authority since in the context of criminal proceedings J.Š. had already received three examinations and fifteen consultations in Dardedze centre with a view to minimising the effects of violence, for which the psychologist report had been made.”

27. On 12 April 2010 a supervising prosecutor upheld that decision.

COMPLAINTS

28. The applicants complained under Article 13, in conjunction with Articles 3 and 8 of the Convention, about the investigation into the alleged sexual abuse of the second applicant. They submitted that the Latvian legislative framework, in principle, was sufficient to ensure children ’ s protection from sexual abuse. However, it was their application in the present case by the police and by the prosecutor ’ s office which was ineffective.

29. The first applicant also complained under Article 8 of the Convention about the interference in her private life on account of assigning her to undergo a forensic psychiatric and psychological examination.

QUESTIONS TO THE PARTIES

1. Having regard to the States ’ positive obligations to enact criminal ‑ law provisions effectively punishing sexual abuse of children (see M.C. v. Bulgaria , no. 39272/98, § 153 ECHR 2003 ‑ XII; M. and C. v. Romania , no. 29032/04 , §§ 111-112, 27 September 2011; and C.A.S. a nd C.S. v. Romania , no. 26692/05, §§ 70-71, 20 March 2012 ), was the manner in which they were applied in the present case by the domestic authorities in breach of Articles 3 and 8 of the Convention?

2. Among other things, a reference is made to the psychologist report of 25 February 2009 and to the forensic report of 2 November 2009 and the evidence subsequently given by both experts and their apparently conflicting conclusions as to whether or not signs of sexual abuse were found. Having regard to the content of the States ’ positive obligations in this regard (see M.C. v. Bulgaria , cited above, §§ 177-178; M. and C. v. Romania , cited above, §§ 116-117; and C.A.S. and C.S. v. Romania , cited above, § 78 ):

(a) Did the domestic authorities make a context-sensitive assessment of the credibility of the allegations of sexual abuse and the statements made by I.Å .?

(b) Did the domestic authorities explore all the available possibilities for establishing the surrounding circumstances?

3. Are the mechanisms provided by the domestic law on child protection effective for the purposes of Articles 3 and 8, taken alone and in conjunction with Article 13 of the Convention?

4. The Government are request ed to submit the complete criminal case file related to the matter.