DISSENTING OPINION OF JUDGE LEMMENS

1. To my regret I am unable to agree with the majority ’ s view that there has been a violation of Article 8 of the Convention.

In my opinion, notwithstanding the fact that the criminal investigation against the suspect (the applicant ’ s father) was discontinued, the investigation satisfied the requirement of effectiveness.

2. The facts in this case were very delicate. The applicant was four years old when the sexual abuse by her father allegedly took place. Her parents were engaged in bitter divorce proceedings.

Allegations of child sexual abuse must be treated with more than ordinary care. “A mistake might jeopardise a child ’ s future or destroy a man ’ s family life and career.” [1]

3. As early as September 2012 the mother had asked for an examination of the child by a psychologist. That psychologist did not identify any extraordinary features in the applicant ’ s behaviour (see paragraph 10 of the judgment; first “private” report). In October 2012, the mother asked a psychological and counselling centre to examine the applicant again, specifically upon a suspicion that the latter had been sexually abused by her father. In November 2012, the centre ’ s psychologists found that the applicant displayed symptoms of the “Child Abuse and Neglect” syndrome [2] , that she refused to portray her father in a picture, and that she manifested sexual behaviour (see paragraph 6; second “private” report).

In December 2012 the mother lodged a criminal complaint against her husband, alleging that the applicant had been sexually abused by him between July and December 2012 (see paragraph 7 of the judgment). In the same month a court ordered the father to refrain from any contact with the applicant. His last contact with his daughter was on 12 December 2012 (see paragraph 8). From that date on, the applicant was under the sole care and custody of her mother.

4. A first criminal investigation took place from December 2012 until May 2013. In the framework of this investigation a psychologist was appointed as an expert. In her report of March 2013 she found that the applicant did not state anything suspicious, displayed average behaviour, and showed no signs of sexual abuse. The expert noted that it was rather the mother who focused on the issue of abuse. The applicant had a vivid imagination, and was able to give her subjective perception of past events (see paragraph 12 of the judgment; first “expert” report).

In May 2013 the criminal investigation was discontinued, on the ground that there was no evidence of sexual abuse.

5. In March 2014 the mother lodged a fresh complaint. She alleged that the applicant, who was then around six years old, “had started talking about the events of 2012”. She submitted two drawings by her daughter, depicting the father in a sexually explicit way. She also submitted a report of March 2014 by the psychologist of a counselling centre, who stated that the applicant had revealed her past “traumatic experience” through drawings and had verbally described “situations of abuse” (see paragraph 15 of the judgment; third “private” report).

This complaint triggered a second criminal investigation.

There then followed a series of expert reports:

- a second “expert” report by a psychologist, on the applicant ’ s personality (June 2014): the expert found that the applicant had no negative emotions towards her father; that there was nothing unusual about her drawings; that there was a suspicion that the topic of sexual abuse had been “artificially generated by people around her”; that the applicant confused reality with imagination; and that there were no signs of “sexual abuse”, but rather signs of “emotional confusion” (see paragraph 18);

- a third “expert” report by the same psychologist, on the father ’ s personality (June 2014): the expert concluded that the father had no aggressive reactions and that there were no signs of pathological symptoms (see paragraph 19);

- a fourth “expert” report by a sexologist, on the father ’ s sexuality (August 2014): the expert concluded that the father was not suffering from any sexual deviation, and did not display any signs of paedophile preferences or sexual aggression; and that there was no sexual or other motivation for the acts allegedly committed by him (see paragraph 20);

- a report produced by a psychologist at the request of the applicant ’ s mother (July 2014) (fourth “private” report, described in the judgment as the sixth “expert” report): the psychologist concluded that the applicant displayed symptoms of sexual abuse and had made drawings displaying her father in a sexually explicit way (see paragraph 22);

- a fifth “expert” report by a psychologist, on the mother ’ s personality (October 2014): the expert concluded that the mother made assumptions and was confused regarding reality; that her statements were very subjective and “based on assumptions, suspiciousness and naivety, assigning sexual connotations to neutral situations”; and that “she might have manipulated the applicant and stimulated her sexual imagination” (see paragraph 21).

6. What was the situation at that point?

The experts appointed by the investigator had found (admittedly, this is a subjective summary):

- that there was nothing unusual about the applicant; that she had a vivid imagination; that there were no signs of sexual abuse;

- that the mother was obsessed by the idea of sexual abuse; that there was a risk that she had stimulated the applicant ’ s imagination in that direction [3] ;

- that the father displayed no pathological symptoms, and there was no sexual or other motivation for the alleged sexual abuse of his daughter.

In contrast, the psychologists consulted by the mother had found that the applicant displayed symptoms of the “Child Abuse and Neglect” syndrome; that she had gone through a “traumatic experience”; and that she displayed “symptoms” of sexual abuse.

It seems to me that the picture drawn by the experts could be described as one which suggested that there had not been any sexual abuse, but rather “symptoms” of sexual abuse, which could have been the result of suggestions by the mother, coupled with the child ’ s vivid imagination. The investigation yielded elements which suggested that there had been a false allegation of child sexual abuse, in the sense of a claim of such abuse although such abuse in fact had never occurred. [4] Moreover, and importantly, there was nothing noteworthy to be said about the father.

7. In this situation, the investigator found it necessary to request another expert opinion. That report, the sixth “expert” report (described in the judgment as the seventh expert report), was submitted in January 2015 by an institute specialised in research on child psychology and pat h opsychology (see paragraph 24 of the judgment). It should be noted that while all previous reports had been prepared by clinicians, this report was entrusted to an institute that was focused on theoretical issues.

The report concluded that it was “highly probable” that the applicant had not invented the events, and that she had experienced sexual abuse; that she was at that time (when she was six or seven years old) able to discern reality from fantasy; that she had referred to her past experience; that the revelation of details of sexual abuse is a process; that the applicant was experiencing internal anxiety and general fear; and that her inner stability was distorted by “inadequate” ( sic ) sexual stimulation.

It strikes me that the experts mentioned sexual abuse, but did not mention the father (whom they had not met). Also, there was no discussion at all of the possibility of provocation of sexual fantasy, or of memory contamination [5] ; the experts found that there had been sexual stimulation, but they did not explore who could have been responsible for that stimulation and what form it could have taken. They seem to have avoided paying attention to the mother ’ s role.

In fact, these experts did not seem to engage with the previous reports. Their report did not discuss some of the crucial elements revealed by the other reports.

When asked by the investigator to specify whether in their opinion the applicant had been sexually abused by her father, the experts gave an evasive answer (see paragraph 29). Furthermore, when asked about the mother ’ s role they stated that the mother could not have provoked the applicant ’ s sexual imagination by asking suggestive or manipulative questions, “since the latter had displayed specific and authentic behaviour and emotions” (see paragraph 30). Was this based on the applicant ’ s conduct when she was seen by the experts? To what extent did the experts take into account the fact that the child had already been questioned in 2012, at a point in her development when what entered her memory did not necessarily distinguish between reality and imagination?

8. I am not surprised that the investigator closed the investigation, referring primarily to the findings of the earlier reports and concluding that there was no doubt that the impugned act had not been committed (see paragraph 33 of the judgment). This was indeed the logical conclusion that could be drawn from these reports. The earlier experts had studied the three persons involved in the allegations, namely the child, the father and the mother. The investigator included the experts ’ findings on each of them in his assessment.

The investigator further concluded that the last report commissioned by the mother and the last expert report had merely indicated that there had been “symptoms” of a sexually abused child, but not proven that sexual abuse had really been committed (ibid.). This was particularly important in the present case. “Symptoms” of sexual abuse could have been the result of suggestions; what counted was whether there were indications of actual sexual abuse.

9. In sum, it seems to me that the investigation was thorough. The complaint by the applicant ’ s mother had been taken seriously. Six expert reports had been commissioned by the investigator: five of them pointed to the absence of sexual abuse, or could at least be interpreted in that sense; the sixth one stated, somewhat surprisingly, that there was a high probability of sexual abuse, but it barely considered any of the arguments against such a conclusion.

The majority attach particular importance to this last expert report (see paragraph 74 of the judgment). I fail to see what justifies such an approach. Normally, more weight should be given to reports submitted when a child was least influenced by others, that is, to the oldest reports. Moreover, for the reasons explained above (see point 6), the last report seems to me to be of a rather theoretical nature, with no intention of engaging with the previous reports.

What else could or should the investigator or the prosecutor have done? Order a new report? Send the father for trial? Why would the truth be better served by a trial? Everything that could come out of the investigation had been disclosed to the investigator.

10. It is not the Court ’ s task to decide whether or not the allegations against the father were sufficiently credible to justify him being brought before a trial court. Rather, its task is to examine whether the domestic authorities “could be said to have carried out a speedy and effective investigation” (see paragraph 66 of the judgment). Or, more precisely, to examine whether the domestic authorities could close the criminal investigation against the father without violating the rights of the applicant, who was a young child.

In the light of the material presented to the investigator and the decision taken by him, I am unable to conclude that the investigation did not meet the requirements of Article 8 of the Convention. [6] In my opinion, taking due account of the Court ’ s role as a “reviewing” court, I must conclude that “the domestic authorities did everything that could have reasonably been expected from them to protect the rights of the applicant, a child allegedly victim of sexual abuse, and to act in her best interest” (see the conclusion by a majority of the Chamber in the very comparable case of A and B v. Croatia , no. 7144/15, § 129, 20 June 2019).

I therefore respectfully dissent.

[1] . A.H. Green, “True and False Allegations of Sexual Abuse in Child Custody Disputes”, Journal of the American Academy of Child Psychiatry , vol. 25, 1986, at p. 449.

[2] . Child abuse and neglect is a broader category than child sexual abuse.

[3] . This finding would later be confirmed in a psychologist’s report, submitted in July 2016 in the framework of the divorce proceedings between the applicant’s parents. According to that report, the mother had a “paranoid focus” on situations involving the daughter and father, and she attached sexual meaning also to situations where the sexual context was absent (see paragraph 37 of the judgment). One should not forget that the applicant was in the exclusive care and custody of her mother from the end of 2012 (see point 3 above) and thus exposed to the mother’s “paranoid focus” on the issue of sexual abuse by the father.

[4] . Studies on child sexual abuse allegations suggest that most of such allegations are true, but also that false allegations do occur, at a non-negligible rate, especially in cases where the parents are in conflict with each other (see W. O’Donohue , C. Cummings and B. Willis, “The Frequency of False Allegations of Child Sexual Abuse: A Critical Review”, Journal of Child Sexual Abuse , vol. 27, 2018, p. 459, at pp. 470-471).

[5] . From my brief consultation of sources on the internet, it would appear that memory contamination is a well-known phenomenon. It has to do with the way how the memory of young children develops: “…younger children are more susceptible to suggestion concerning the details of what they recall. One likely reason for this susceptibility is the child’s inability to accurately distinguish among different sources of memories. Not all memories arise from actual experiences, and while an adult might readily recognise that a certain memory must clearly have its source in dream or fantasy, this recognition might not be so easy for a child. Children do not confuse all sources of memory. Rather, there is a recognisable pattern. Research indicates that children tend to have relatively little difficulty distinguishing memories of something they actually said from something someone else said, or memories of one actual event from memories of another actual event. However, young children may have considerable difficulty distinguishing memories of things they themselves have actually said or done from memories of things they have only imagined themselves saying or doing. It follows that there is a fairly low risk that children will confuse different events or take an interviewer’s words as ones they themselves have spoken. However, there may be a substantial danger that, if an interviewer’s words or procedures move the child to imagine some event or some of its details, the child will thereafter accept the fantasy as a memory” ( from J.R. Christiansen, “The Testimony of Child Witnesses: Fact, Fantasy and the Influence of Pretrial Interviews”, Washington Law Review , vol. 62, 1987, p. 705, at pp. 709-710). Obviously, memory contamination can also be the result of questioning of a child by a parent, for example a parent who suspects sexual abuse (see, e.g., D.A. Poole and D.S. Lindsay, “Children’s Eyewitness Reports After Exposure to Misinformation From Parents”, Journal of Experimental Psychology , vol. 7, 2001, pp. 27-50).

[6] . It is not the Court’s task to examine whether the decision to discontinue the criminal investigation complied with domestic law, namely Article 215 of the Code of Criminal Procedure (compare paragraph 76 of the judgment).