DISSENTING OPINION OF JUDGE GROZEV

While I agree with the approach taken in defining the applicable Convention principles in the present case, to my regret I am not able to follow the majority in its analysis of the specific circumstances and the conclusion that there has been no violation of Article 8.

In the present case there was no obligation on the respondent State to provide a criminal-law, as distinct from a civil-law, remedy. The Court is justified in reviewing the complaints of the applicants from the perspective of Article 8 and not of Article 3, and there is no justification in the Court ’ s case-law for an obligation to provide a criminal-law remedy under Article 8. Even in the context of allegations of sexual assault, the Court has left some room for flexibility as to the appropriate remedy. As far back as its judgment in X and Y v. the Netherlands the Court held that, when it comes to providing protection of rights guaranteed under Article 8, “there are different ways of ensuring ‘ respect for private life ’ , and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue. Recourse to the criminal law is not necessarily the only answer” ( see X and Y v. the Netherlands , 26 March 1985, § 24, Series A no. 91) . Where the right allegedly infringed is not one of a person ’ s physical integrity but one of personal autonomy, as in the present case, the freedom which respondent States enjoy in choosing the appropriate remedy is in my view indisputable. In the present case Article 8 is applicable, and only at the lower end of it spectrum – if one can borrow from Article 3 this approach to defining the level of severity of the interference – and thus the option of providing a non-criminal remedy could not be denied to the respondent State.

While under Article 8 States have the freedom to choose the system of protection they consider most appropriate for the specific offence, that system should nevertheless provide the requisite protection, taking into account “the particular aspect of private life that is at issue”. Even though the alleged incidents complained of in the present case did not entail violence, they do qualify as sexual abuse, being “psychologically intrusive ... and traumatic”, to use the language of the UN Committee on the Rights of the Child. Thus, the special requirements developed in this field of international law regarding the need for the available procedure to be child ‑ centred and child-sensitive should definitely apply. And the remedy provided by the respondent State should certainly, by definition, allow all the relevant evidence to be collected and demonstrably reviewed precisely from that child-sensitive perspective.

The respondent State in the present case has chosen to build its system by relying primarily on criminal law, with general civil law playing a subordinate role. It is clear in the present case that the criminal proceedings were the primary proceedings for the collection of evidence, with the subsequent civil proceedings apparently relying on the evidence thus collected. This inevitably places the focus of the analysis as to whether the applicants were afforded effective protection on the criminal investigation, without excluding the possibility that the civil lawsuit might have remedied certain shortcomings in the criminal investigation. In any case, the two sets of proceedings taken as a whole should be assessed as to whether they addressed sufficiently the core of the applicants ’ complaint, namely that they had been compelled to parade themselves naked and be massaged by an adult man. It is precisely on this question, whether the criminal investigation combined with the subsequent civil lawsuit addressed the relevant issues with sufficient thoroughness and provided clear and satisfactory answers, that I part with the majority.

In the course of the domestic proceedings strong evidence was collected that the applicants had been compelled to attend the sauna naked and be massaged by their coach. Both their statements (see paragraphs 24 et seq. of the judgment) and the psychological report (see paragraphs 37 et seq.) clearly attest to that. Circumstantial evidence, like the age of the applicants, the fact that their coach was in a strong position of authority and the fact that boys were attending the sauna in their swimsuits, was also relevant. Given the subject of the complaint, the national remedy or remedies should have focused on the issue of consent, and the evidence should have been assessed from this perspective. In my view, however, neither the criminal proceedings nor the subsequent civil proceedings provided a satisfactory assessment of the applicants ’ consent or lack thereof. The criminal investigation seems to have only briefly touched upon the issue, choosing instead to focus on the subjective issue, that is, the state of mind of the coach and whether he acted with a “sexual purpose” as this term was defined by national law. The lack of such “sexual purpose” seems to have been decisive for the termination of the criminal proceedings. As to the consent of the applicants, while the investigation did not challenge the veracity of their statements it reached a conclusion directly opposed to those statements, namely that the applicants had voluntarily attended the sauna naked and had voluntarily requested to be massaged naked. There was no effort to resolve and/or explain this apparent contradiction between this finding and the statements of the applicants and the other evidence. Crucially, there was no effort to address the key issue of the coach being in a position of authority over the applicants. This failure to address the issue which, from the perspective of Article 8 of the Convention, was central, was not remedied by the civil proceedings either. The civil court explicitly rejected the argument that the applicants ’ decision to attend the sauna had been influenced by their coach, again without an analysis of the available evidence, and it relied in awarding damages on the more general notion that such a practice was unethical and in contravention of general moral principles. As a result, taken as a whole, the two sets of proceedings did not provide sufficient protection of the applicants ’ right to personal autonomy as a component of the right to respect for private life guaranteed by Article 8.

DISSENTING OPINION OF JUDGE MITS

I agree with the majority that the facts of the case triggered an obligation on the part of the domestic authorities to carry out a criminal investigation, but, regretfully, I cannot agree with the conclusion that the investigation was effective.

I. Obligation to carry out a criminal investigation

1. There are not many cases with their focus on a possible obligation under Article 8 of the Convention to conduct a criminal investigation. While there is a rich body of case-law on the obligation to carry out an effective criminal investigation with the aim of establishing the facts and punishing the perpetrators when the alleged acts, even if committed by private persons, have reached the threshold of Article 3 (see, among other authorities, M.C. v. Bulgaria , no. 39272/98, §§ 151 and 153, ECHR 2003 ‑ XII, and C .A.S. and C.S. v. Romania , no. 26692/05 , § 70, 20 March 2012 ), there are far fewer cases where the facts fall exclusively within the scope of Article 8 and concern minors. These situations require a nuanced assessment.

2. The Court has acknowledged that there can exist obligations specifically of a criminal-law character under Article 8, including an obligation to carry out an effective investigation. In K.U. v. Finland , which concerned the creation of a fake profile on the Internet, thus making a minor a target for approaches by paedophiles, the Court considered that the act, although it did not involve any physical violence, could not be considered trivial as it involved a potential threat to a minor ’ s physical and mental welfare and required a remedy under criminal law enabling the offender to be identified and brought to justice (see K.U. v. Finland , no. 2872/02, §§ 45-47, ECHR 2008). In Remetin v. Croatia a minor had been slapped and kicked by an adult and the Court, noting that the minor belonged to the group of “vulnerable individuals”, considered that such acts of violence required the adoption of positive measures in the sphere of criminal law and effective application of the criminal-law mechanism (see Remetin v. Croatia , no. 29525/10 , § 91, 11 December 2012). In both cases the domestic law criminalised the alleged acts, but the State ’ s obligations of a criminal-law character were established irrespective of the availability of remedies under civil law.

3. The Court has also held that when acts committed between individuals are less serious than those mentioned above, but may still violate a person ’ s psychological integrity, the obligations under Article 8 do not always require the existence of an efficient criminal-law framework; the legal framework may consist also of civil-law remedies (see Söderman v. Sweden ([GC], no. 5786/08, § 85, ECHR 2013). In Söderman , a stepfather had attempted the covert filming of his stepdaughter in the shower. The Court, noting that the applicant had not claimed that recourse to criminal law was the only way for the State to fulfil its obligations under Article 8, and that the State had complied with its obligation of effective prosecution as far as applicable (the alleged act did not constitute a criminal offence under domestic law as then in force), proceeded with the assessment of the entire legal framework. The principle that civil-law remedies may suffice under Article 8 in the case of less serious instances of interference was established a long time ago (see, mutatis mutandis , X and Y v. the Netherlands , no. 8978/80, §§ 24 and 27, Series A no. 91).

It can be concluded that there might be situations falling exclusively within the scope of Article 8 that trigger an obligation for the State to provide an efficient criminal-law framework, including an effective investigation, and situations that do not require the application of a legal framework of an exclusively criminal-law character.

4. As can be seen from the cases examined in paragraph 2 above, in order to trigger obligations of a criminal-law character under Article 8, the alleged act has to attain a certain degree of seriousness (or not be trivial), and it must pose a potential threat to (or already have had an effect on) the minor ’ s physical and mental welfare.

5. Returning to the facts of the case, the majority distinguished between the events concerning the second applicant and those that occurred in the changing room and in Lithuania on the one hand, and the events concerning the sauna on the other hand. The former events were found not to be serious enough to trigger an obligation to conduct a criminal investigation (see paragraph 157 of the judgment), whereas the latter events were said to be serious and potentially punishable under domestic criminal law (see paragraph 162). Hence, effective deterrence of such acts could be achieved only by applying the domestic criminal law through the conduct of an effective investigation (see paragraph 163 of the judgment).

6. I readily share the view of the majority that the events in the sauna, as described in paragraphs 159-161 of the judgment, cannot be regarded as trivial. It must be emphasised that appearing naked in front of a person of the opposite sex is not considered an acceptable part of sauna culture in Latvia. Moreover, there is a context involving a relationship of trust and authority between a coach and young female persons aged between thirteen and sixteen which makes the minors particularly vulnerable to influences from someone who represents authority in their eyes. Furthermore, personalities at this age are undergoing an active process of formation. The psychologist ’ s report ordered by the police more than a year after the events noted that all three applicants felt anger and had either unpleasant feelings or feelings of guilt concerning the events involving their coach, and that the first applicant had become distrustful in her communication with older men ( see paragraph 42 of the judgment).

7. It must be noted that in the present case the alleged acts had an effect only on the mental and not on the physical welfare of the minors. There are good reasons for accepting this fact in the specific circumstances of the case.

8. In addition, the police deemed the allegations of sexual abuse serious enough to start a criminal investigation under Article 162 of the Criminal Law. This provision contained an offence of sexual abuse, and the Supreme Court had explained that sexual abuse could be intellectual or physical and could be committed, for example, by compelling a person to expose his or her body (see paragraph 106 of the judgment).

Therefore, the events in the sauna triggered an obligation for the domestic authorities to conduct an effective criminal investigation.

II. Whether the criminal investigation was effective

9. The European Convention on Human Rights must be interpreted taking into account the rules of international law, including, as far as possible, other international human rights treaties. The rights of the child form a backdrop to the present case, and, among various international instruments, Article 19 of the UN Convention on the Rights of the Child imposes an obligation of prevention and investigation of instances of, inter alia , sexual abuse. The UN Committee on the Rights of the Child, in paragraph 51 of its General Comment No. 13 (2011), points out that the investigation of instances of violence (which includes any form of sexual abuse) should be undertaken by qualified professionals who have received role-specific and comprehensive training, and should have a child rights ‑ based approach; the investigation procedures should be rigorous and child-sensitive so that they help to correctly identify, inter alia , sexual abuse (see paragraph 111 of the judgment). The underlying idea is that cases involving violence against children, including sexual abuse, have specific features and professionals have to be trained to deal with them properly.

10. While there is not an extensive body of case-law in the sphere of the rights of the child, the Court has acknowledged when dealing with sexual violence against a minor that the investigation has to be rigorous and child ‑ sensitive and that the facts have to be established by engaging in a context-sensitive assessment (see C.A.S. and C.S. v. Romania , cited above, § 78). In that case, this was done within the scope of Articles 3 and 8 taken together; however, the procedural obligation to conduct an effective investigation should have the same content under Articles 3 and 8 when assessed separately, since there can be no logical explanation for applying different standards to the procedural obligation to investigate, requiring the investigation to be more or less effective depending on the Article under which the situation is examined.

11. This means that the “significant flaw” test traditionally used to assess the effectiveness of the criminal investigation in situations where minors are concerned has to include an evaluation of whether the investigation was rigorous, child-sensitive and context-sensitive, that is, it has to take into account the specific context involving minors. When applying this test to the facts of the case I cannot arrive at the conclusion of the majority that the investigation did not reveal significant shortcomings (see paragraph 173 of the judgment).

12. The investigation, inter alia , failed to examine:

(i) the reasons for attending the sauna naked, in particular in the context of the relationship of trust and authority that existed between the students and their coach (see paragraphs 60, 24 and 28 of the judgment);

(ii) the contradictions in the statements by O.B. concerning his students ’ attendance of the sauna naked (see paragraph 45);

(iii) whether indeed, and if so, why, boys did not attend the sauna naked (see paragraph 57);

(iv) the relevance of the context, that is to say, other events potentially pointing to a sexual interest shown by O.B. (such as events in Lithuania, entering the changing room and touching students, massaging students).

In my opinion, these are all relevant factors for the assessment of whether O.B. acted with a sexual purpose – the absence of which was the reason for the closure of the investigation cited by the investigator (see paragraph 61 of the judgment) and later confirmed by the prosecutors. As a result, the case did not reach the domestic courts, the only authority that could rule on whether a crime was or was not committed under Article 162 of the Criminal Law.

13. An observation must be made concerning the general situation in Latvia. As pointed out by the NGO “Dardedze” which specialises in matters of child abuse, one of the problems concerning violence against children in Latvia, including sexual abuse, at the time of the events was the conflicting and superficial application of the law by the law-enforcement authorities, including the termination of criminal proceedings in cases that required complicated investigation or assessment of the psychological harm to the victim. Insufficient knowledge on the part of the professionals of the character of sexual violence (including abuse) and its severe consequences were identified as being among the main causes of this problem [1] .

14. In view of the deficiencies listed in paragraph 12 above, I find that the investigation was neither rigorous nor context-sensitive. These deficiencies cannot be treated merely as errors or isolated omissions; they were significant as they were highly relevant to the question of sexual intent – the element that was at the heart of the decision to close the investigation. By not examining important aspects of this case the investigation revealed significant flaws (see Söderman , cited above, § 90 ).

Consequently, the Latvian authorities did not fulfil their positive obligation under Article 8 to conduct an effective criminal investigation with respect to the events in the sauna.

15. Finally, I voted against finding no violation of Article 8 with respect to the other events, because I think that all the events as a whole should have been assessed in the context of the State ’ s positive obligation to conduct an effective criminal investigation.

[1] 1. Overview of Violence Against the Child in Latvia within the framework of the project “Sexual Violence against Children in Residential Institutions”  (DAPHNE III 2007-2013 Program of the EC, NR. JLS/2007/DAP-1/178/-30-CE-0229207/00-68), 2009, p. 13, available in Latvian at:

http://www.centrsdardedze.lv/data/kampanas/S_02_Parskats_LV_lat%20(1).pdf