DISSENTING OPINION OF JUDGE KALAYDJIEVA

Together with my esteemed colleagues, I am “struck by the fact that following the first applicant’s release, it took the authorities less than a full day to reach their conclusions” (paragraph 104) and discontinue any further investigation into the applicants’ complaints. These complaints involved ill-treatment and non-consensual sexual acts with a minor, which allegedly lasted one month and took place in a villa owned by a person with a criminal record. The Court was unanimous in finding that “had they been proved, [some of the acts complained of] could have amounted to human trafficking” and -further on - that no investigation had taken place.

What I find even more striking in the present case is the fact that having raided the villa, where the first applicant was allegedly held against her will, and released her seventeen days after obtaining information that the mother feared that her daughter might be subjected to forced prostitution, the authorities decided not only to dismiss these complaints without any further enquiries, but also to immediately institute criminal proceedings against the seventeen-year-old girl and her mother for perjury and false accusations to the effect “that X., Y. and Z. [had] deprived [the minor] of her liberty by keeping her in the villa, thus accusing them of kidnapping while knowing they were innocent” (paragraph 30).

It appears somewhat illogical that having “opined that the circumstances of the present case concerned a Roma marriage”, the authorities nonetheless undertook protective measures by placing the girl in a Caritas shelter and then handing her into her mother’s care, instead of leaving her free to happily rejoin her “husband” after an action apparently regarded as an unnecessary interference in their peaceful family affairs.

I find it alarming that, after receiving further detailed and insistent complaints from the applicants (paragraphs 16 and 25) through the Bulgarian embassy in Rome, the Italian authorities insisted on proceeding with the accusations against the applicants rather than investigating the circumstances complained of. It is difficult to avoid the impression that this was done in an attempt to actively disprove not only the purposes for which the minor had allegedly been forcefully held in the villa, but also the very fact of the unlawful deprivation of liberty, from which they released her. Indeed, the respondent Italian Government relied on the proceedings instituted for perjury to convince the Court that “the facts as alleged by the applicants had been entirely disproved during domestic proceedings” (paragraph 90) and that the “traditional marriage” understanding of the events had been considered “truthful by the judgment of the Turin Investigating Magistrate” in discontinuing the proceedings against the first applicant as well as found “probable by the Turin Tribunal in its judgment of 2006” acquitting the third applicant (paragraphs 92 and 93). In fact, the judge of the Turin Tribunal found the photographs of the “marriage” to depict a scene that was rather grim for Roma traditions. Acting in proceedings in absentia , where the third applicant was neither summoned to appear, nor able to defend herself, or explain the circumstances, he dismissed the accusations of perjury and false accusations against her, noting also that X., Y. and Z. had availed themselves of their right to remain silent in the “false accusations of kidnapping”, allegedly raised by the mother.

The applicants’ allegations of ill-treatment by the Italian authorities were not limited to the failure to undertake timely action for the release and protection of a minor, as suggested by paragraphs 102-108 of the judgment. In this regard I see no reason to join the majority in their approval of the “promptness and diligence” (paragraph 102) displayed in an action which the national authorities themselves deemed unnecessary and caused by false assertions.

Nor were the applicants’ complaints about the manner in which they were allegedly questioned separated from those concerning the attitude of the Italian authorities – as examined in paragraphs 115-118. In this regard, the very fact that the criminal proceedings for perjury and false accusations were instituted a few hours after the allegedly threatening interrogations suffices to support a conclusion that the threats were quite realistic.

The applicants’ submissions about ill-treatment by the authorities concerned the overall approach of the Italian investigation authorities to their complaints. Seeing that they were not only dismissed without any enquiries, but were also followed by an attempt to actively disprove them, I cannot come to any explanation for this treatment other than an assumption on the part of the authorities that the applicants had been telling lies from the outset. This assumption transpires from the reluctance to organise the timely release of the minor, the manner in which she and her mother were hastily questioned under threat and the immediate (but unsuccessful) institution of proceedings for perjury in an attempt to establish that their complaints were nothing but false accusations, made while knowing that X., Y. and Z. were innocent.

This explanation appears to be more reasonable than that offered to the Court, namely, that the “Italian authorities opined that the circumstances of the present case fell within the context of a Roma marriage”. Even if correct (and I would venture to doubt it), such an “opinion” could not reasonably explain the manner in which the authorities dealt with the applicants’ complaints of ill-treatment, non-consensual sex, forced participation in criminal activities, etc., unless it is seen as an understanding that a Roma marriage constituted an agreement of the parents to sell a bride “for all purposes”.

I find myself unable to accept either of these two explanations for the manner in which the authorities dealt with the applicants’ complaints and find each of them to be based on equally inappropriate assumptions.