Legal summary

February 2023

B v. Russia - 36328/20

Judgment 7.2.2023 [Section III]

Article 3

Positive obligations

Failure to protect the personal integrity of an extremely vulnerable child in criminal proceedings concerning her alleged sexual abuse by several individuals leading to her secondary victimisation: violation

Facts – The present application concerns the alleged secondary victimisation of the applicant, an orphan minor, during a preliminary investigation and trial in criminal proceedings against four individuals concerning her sexual abuse between the ages of 7 and 10.

Law –

Preliminary issue – As the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application.

Article 3:

Having regard to the applicant’s acute vulnerability and particularly serious nature of her alleged secondary victimisation, attaining the severity threshold under Article 3, the Court considered that the case fell to be examined under the above provision alone.

The issue in the case was the alleged adequacy of measures aimed at protecting in criminal proceedings the rights of a child victim of sexual abuse.

The applicant, who had lost her mother and had experienced placement in an orphanage, had been 12 years old at the beginning of the investigation. She had had to participate, over a period of one year and seven months, in repeated interviews about her sexual abuse, to repeat her statements at the places where the abuse had allegedly been committed, to identify and confront the perpetrators in person, and to be questioned again at the trial against one of them.

Only the first interview had been video-recorded, and the recording had been lost on the same day. In order to keep the number of interviews to a minimum and thus avoid further trauma, Article 35 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“Lanzarote Convention”) provided for the use of video-recording and recommended that such recordings should be accepted as evidence. The Russian Code of Criminal Procedure made it obligatory to videotape all investigative activities with victims of crimes against sexual integrity aged under 16 but did not specify the rationale behind that rule, namely that the investigations and criminal proceedings should aim at avoiding aggravation of the trauma experienced by the child and should be carried out in the best interests of the child. Nor did it contain provisions ensuring that the number of interviews be as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings (see in this connection Articles 30 and 35 of the Lanzarote Convention).

Safeguarding the video-recording of the first testimony had been extremely important. However, there was no indication that there had been corresponding procedures in place for ensuring this. After its loss no other means of preventing the applicant from having to repeat the story of her abuse and reliving the trauma had been assessed and implemented, whilst the fact that there had been four separate sets of proceedings had not prevented the use of the same relevant evidence in the different proceedings. As a result of those shortcomings, the applicant had had to repeat her statements about the abuse that she had allegedly suffered without the necessity for such additional interviews being clearly shown. She also had had to recount her abuse to the forensic expert. In addition, it had not been shown why it had been necessary for the applicant to have repeated her statements at the places in which her alleged abuse had occurred – in one of these the “verification” having been conducted in the presence of a brother of one of the perpetrators. The Government had not shown that his presence had outweighed the interests of the child.

The applicant had been interviewed by four different investigators, three of whom male which, according to the applicant, had made the experience even more stressful for her. Article 35 of the Lanzarote Convention provided that all interviews with the child should as far as possible be conducted by the same person. Such a provision was missing in domestic law. There was no indication that it had been impossible in practice for the same investigator, a female investigator, to interview the applicant. Further, all the 12 interviews had taken place in ordinary offices. In this connection the use of premises designed or adapted for interviews with the child was envisaged by Article 35 of the Lanzarote Convention.

Of particular concern was the applicant’s contact with the alleged perpetrators. Article 31 of the Lanzarote Convention called for ensuring that contact between victims and perpetrators within court and law enforcement agency premises was avoided, unless the best interests of the child or the investigations and proceedings required it. Confronting two of the alleged perpetrators – which had not been prohibited or subject to special provisions in proceedings concerning child victims of sexual abuse under the Code of Criminal Procedure – had been a particularly distressing experience for the applicant, further aggravated by the fact that the lawyers of one of them had subjected her to intense questioning. No alternatives, which would have enabled the defence to put questions in a manner less disturbing for the victim, had been offered.

Furthermore, there was no indication that the investigators involved in the proceedings concerning the applicant’s sexual abuse had been trained in investigating crimes against the sexual integrity of minors (see in this connection Articles 34 and 35 of the Lanzarote Convention).

During the above-mentioned investigative activities, the applicant had displayed signs of psychological trauma, typical for child victims of sexual abuse, reliving shame, emotional stress, nervous overstrain and fear. Those reactions had been especially strong when she had had to see the perpetrators during the identification parades or confront them in person, assisted by their lawyers, which had prompted her emotional breakdown. She had needed psychological rehabilitation; she had been in a state of high anxiety and severe emotional stress as well as exhausted emotionally and physically. Although having been aware of the opinions of the psychologists concerning the applicant’s condition and the impact on her of the investigative activities, the investigators had largely ignored them. Further, even though they had taken some decisions aimed at protecting the applicant, these had not been coordinated between the different investigators and had not been enforced in all the proceedings.

Especially striking had been the applicant’s continued interviews by the investigators and her repeated examination at the trial after the commission of forensic experts had diagnosed her with mental disorder in the form of prolonged depressive reaction, which had developed as a result of her sexual abuse, tragic family situation and her participation in the investigation and criminal proceedings. Her condition had required treatment and her further participation in the investigation and court proceedings had not been recommended. While it had been possible to use the same evidence in the different sets of proceedings, the trial court had rejected the request to examine the above report on the formal grounds that it had been ordered in another set of proceedings concerning the applicant’s alleged sexual abuse by a different defendant. This had been despite the fact that that report had been ordered to remove inconsistencies between the earlier forensic reports against the defendant in the trial in question and had already been made part of several of the sets of proceedings concerning the applicant’s abuse. The court’s decision lacked reasons showing that the rights of the defence would have been seriously affected and that they had to prevail over the applicant’s rights.

The court had further rejected the prosecutor’s repeated requests that the applicant’s statements at the preliminary investigation be read out to avoid her examination and therefore her further traumatisation, despite the psychologists’ opinion in that respect. Contrary to the provisions of the Code of Criminal Procedure, the court had not given any reasons why the applicant’s examination at the trial had been considered necessary. The applicant had been subjected to extensive and detailed questioning about her sexual abuse, she had been obliged to listen to her statements given at the preliminary investigation and had been questioned in respect of alleged inconsistencies.

It had been first and foremost the trial court’s responsibility to ensure that respect for the applicant’s personal integrity had been adequately protected at the trial and that an appropriate balancing exercise had been conducted assessing the applicant’s rights against those of the defence. It was striking that the judge had given no reasons for his decision to question the applicant and had not considered, the applicant’s particular vulnerability as a child victim of sexual abuse, the evidence of the worrying condition of her psychological health, the experts’ recommendation against her participation in the hearing, or even the psychologist and her guardian’s request to halt her examination because of further traumatisation. That had been incompatible with the sensitive approach required on the part of the authorities to the conduct of criminal proceedings concerning the sexual abuse of a minor. Article 36 of the Lanzarote Convention concerned training on the rights of child victims of sexual abuse which should be available for the benefit of all persons involved in the proceedings, in particular judges, prosecutors and lawyers.

The applicant’s condition had deteriorated throughout the proceedings, being diagnosed with post-traumatic stress disorder and suffering from asthenia, anxiety, depression, suicide risk and self-harm Almost three years into the proceedings and whilst they were still pending, she had to be placed under supervision by a psychiatrist and had been in need of lengthy treatment.

In conclusion, the authorities had displayed utter disregard for the sufferings of the applicant who had been in the situation of acute vulnerability on account of her young age, tragic family situation, had experienced placement in an orphanage and the alleged sexual abuse by several individuals. The respondent State had thus failed to protect her personal integrity in the course of the criminal proceedings which had led to her secondary victimisation.

Conclusion : violation (unanimously).

Article 41: EUR 13,533 in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage.

(See also Y. v. Slovenia , 41107/10, 28 May 2015, Legal Summary ; A and B v. Croatia , 7144/15, 20 June 2019; X and Others v. Bulgaria [GC], 22457/16, 2 February 2021, Legal Summary ; N.Ç. v. Turkey , 40591/11, 9 February 2021, Legal Summary )

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

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