The ECHR ruling of February 02, 2021 in the case "X and Others (X and Others) v. Bulgaria" (aplication No. 22457/16).
In 2016, the applicants were assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Bulgaria.
An aplication about the circumstances of sexual violence committed against the applicants during their stay in the orphanage was successfully considered in the case. The case involved a violation of the requirements of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (procedural aspect).
CIRCUMSTANCES OF THE CASE
The applicants were born in Bulgaria and are three blood relatives. In June 2012, at the age of 12, ten and nine, respectively, they were adopted by a married couple from Italy. Subsequently, the applicants informed their adoptive parents about sexual violence against them during their stay in an orphanage in Bulgaria.
Both directly and with the help of intermediary organizations, the applicants' adoptive parents filed complaints of violence against the applicants to the Italian authorities, in particular, to the Commission on International Adoption under the Presidium of the Council of Ministers of the Italian Republic (CIA) and the Prosecutor's Office of Milan. The said authorities referred the complaints to the Bulgarian authorities. The applicants' foster parents also contacted investigative journalists in Italy, who published an article about the widespread practice of sexual violence against children in orphanages, which drew the attention of the Bulgarian media. After these events, three cases were independently initiated in Bulgaria in connection with the facts announced in the media. The proceedings in all three cases were later terminated due to insufficient evidence of the commission of a crime, and the relevant decisions were left unchanged by the Bulgarian courts.
In a Ruling dated January 17, 2019, the Chamber of the European Court unanimously indicated that there was no violation of Article 3 of the Convention (substantive and procedural aspects) and Article 8 of the Convention. At the request of the applicants, the case was transferred to the Grand Chamber of the European Court.
Regarding compliance with article 3 of the Convention. The European Court considered it appropriate to consider the submitted complaints in accordance with Article 3 of the Convention alone.
(a) A positive obligation to establish an appropriate legislative and subordinate regulatory framework (substantive aspect). The applicants did not dispute the existence of criminal law norms in Bulgarian legislation aimed at preventing and punishing sexual violence against children, and the relevant provisions of the Bulgarian Criminal Code seemed to be suitable to regulate the acts complained of in the present case. States additionally have an increased duty of protection in relation to children deprived of parental care and placed in institutions of guardianship, which, therefore, are in a particularly vulnerable position. In this regard, the Bulgarian authorities insisted that there were a number of mechanisms aimed at preventing and detecting cases of ill-treatment in places of detention of children. Although the applicants disputed the fact of the actual existence and effectiveness of some of these measures and mechanisms, there was not enough information to confirm these words. It was also not established that there were systematic problems related to sexual violence against children in orphanages that would require stricter measures by the Bulgarian authorities.
(b) Positive obligation to take preventive operational measures (substantive aspect). The applicants were in a particularly vulnerable position, and only the Bulgarian authorities were responsible for them. In such circumstances, the obligation to take preventive operational measures when the authorities knew or should have known about the risk that the child could be subjected to ill-treatment was even higher in the present case and required the Bulgarian authorities to show special diligence.
During the investigation conducted by the Bulgarian authorities, it was not established that the staff of the orphanage or any other officials would have known about the alleged acts of violence. In such circumstances, and in the absence of evidence of the allegation that the first applicant had reported the cases of violence to the director of the orphanage, the European Court did not have sufficient information to recognize that the Bulgarian authorities knew or should have known about the existence of a real and imminent risk that the applicants would have been subjected to ill-treatment, so that this circumstance served as a basis for the application of the obligation to take preventive operational measures to protect against the said risk.
In the case, the requirements of article 3 of the Convention (substantive aspect) were not violated (adopted unanimously).
(c) The procedural obligation to conduct an effective investigation. In cases potentially involving sexual violence against children, the procedural obligation under article 3 of the Convention to conduct an effective investigation should be interpreted in the light of obligations arising from other international instruments, namely the Council of Europe Convention on the Protection of Children from Sexual Exploitation and Sexual Violence (also known as the Lanzarote Convention. In particular, see articles 12 - 14 and 30 - 38 of the said Convention.).
The obligation of the Bulgarian authorities to conduct a sufficiently thorough investigation arose as soon as the authorities received a credible complaint about the fact of sexual violence. This duty could not be limited only to responding to victims' appeals or recognizing the responsibility of victims of crimes for carrying out any investigative actions. Already in February 2013, the Bulgarian authorities received more detailed information from the Milan Prosecutor's Office regarding the applicants' complaints. The information received indicated that the applicants' psychologist considered their words reliable and that a number of Italian public authorities considered the applicants' complaints serious enough to justify the initiation of an investigation. Consequently, the Bulgarian authorities received information about the complaint to be proved, which became the basis for the application of the procedural obligation under article 3 of the Convention.
The Bulgarian authorities have carried out a number of investigative actions. Therefore, the European Court had to consider whether the investigation was sufficiently effective. There was no reason to dispute the urgency and speed of the actions of the Bulgarian authorities, as well as the independence of the State Agency for the Protection of Children (SACP), which carried out some of these actions.
Although the applicants' adoptive parents did not seek to participate in the investigation, it is regrettable that the Bulgarian authorities did not attempt to contact the parents in order to provide them with the necessary information or support at the appropriate time. Consequently, the Bulgarian authorities prevented the applicants' foster parents from taking an active part in a number of procedural actions, and the said persons did not have the opportunity to file a complaint for a long time after the investigation was completed (See in this regard, subparagraphs "a", "c" and "d" of paragraph 1 of Article 31 of the Lanzarote Convention.).
As for the thoroughness of the investigation: experts from the relevant State authorities and police officers conducted crime scene inspections, examined written evidence, including medical records of the applicants and other children who lived in the orphanage during the same period as the applicants, and questioned various staff representatives, professional workers and persons who could be alleged criminals. Interviews were also conducted with children from the orphanage, including the children referred to by the applicants: although also the conversations were not always conducted in a manner appropriate to the age of the children and their level of development, and these conversations were not recorded on video (see in this regard, paragraphs 1 and 2 of Article 35 of the Lanzarote Convention). The police officers had to talk to one of the children again.
In addition, the Bulgarian authorities clearly showed negligence by not taking advantage of some areas for verification that could be essential to the case, and by not carrying out certain investigative actions.
(i) International cooperation. If the Bulgarian authorities had doubts about the credibility of the applicants' allegations, they could have tried to clarify the facts by questioning the applicants and their adoptive parents. As professional workers who had heard the applicants' explanations, various psychologists who had interviewed the applicants in Italy could also provide the investigation with the necessary information. Although it would be undesirable for the Bulgarian authorities to interrogate the applicants - given the risk of deterioration of the psychological trauma already received by the applicants and the risk of ineffective communication, due to the long time that has already passed and the impact on evidence from subsequent memories or other external influences - the Bulgarian authorities would have to assess the need for such interrogations. Guided by the principles set out in international instruments, the Bulgarian authorities could take measures to assist and support the applicants in their dual capacity as victims and witnesses of the crime and could travel to Italy within the framework of a mutual legal assistance treaty or ask the Italian authorities to question the applicants again. As indicated in the Lanzarote Convention and case law (See: The Ruling of the Grand Chamber of the European Court of Justice in the case "Guzelyurtlu and Others v. Cyprus and Turkey" (Guzelyurtlu and Others v. Cyprus and Turkey) dated January 29, 2019, Complaint No. 36925/07.) of the European Court, in cases involving several States, the procedural obligation to conduct an investigation may entail the obligation to request assistance from other States in order to conduct an investigation and bring charges. In the present case, although the Italian prosecutor waived jurisdiction over that case on the grounds that the facts did not allow establishing a sufficient jurisdictional link with the State of Italy, the applicants could have been interrogated within the framework of the judicial cooperation mechanism existing, in particular, in the European Union. Even if the Bulgarian authorities had not directly asked to question the applicants, they could have requested from the relevant Italian authorities videotapes of the applicants' allegations recorded by the applicants' psychologists, as well as during a conversation with the Italian Juvenile Prosecutor in order to verify their authenticity.
(ii) Investigation of violence against other children and by other children. The applicants' allegations and related evidence also contained information about other children who were allegedly victims of violence and children who were alleged to have committed violence, in some cases reaching the level of abuse. Therefore, the Bulgarian authorities were obliged to verify these alleged facts. However, the Bulgarian authorities did not attempt to interrogate the children named by the applicants, who had left the orphanage for the time in question.
(iii) Other investigative actions. Due to the nature and severity of the alleged violence, the issue of carrying out investigative actions of a more covert nature, such as surveillance of the territory of the orphanage, wiretapping or interception of telephone and electronic communications, as well as the use of undercover agents, should have been considered. Such measures were provided for by the Lanzarote Convention and were widely used in Europe in investigations of this kind. Although the guarantees contained in article 8 of the Convention (respect for privacy) may legitimately impose restrictions on the limits of the investigation, these measures seemed appropriate and proportionate in the present case, given the applicants' allegations of the participation of an organized group in criminal activity and the fact that the persons to be identified were named in the case. The measures under consideration could be applied progressively, starting with those that had the least impact on the privacy of the persons concerned.
Although the provisions of the Lanzarote Convention encouraged the use of hotlines to report violence, the European Court notes with regret the lack of response from the State Agency for Child Protection (SACP) after the email of the applicants' adoptive father and the report of the Nadia Center (a center in Bulgaria specializing in child protection.) in November 2012. The Agency had the opportunity, within the framework of a system that guaranteed the anonymity of potential victims, to request from the center all the necessary details, which would allow the establishment of the orphanage referred to in the case, and conduct covert investigative actions even earlier.
In addition, despite the allegations that the photographer took the pictures, the investigators did not consider the possibility of searching the photo studio and seizing the equipment on which the pictures were taken. In a more general sense, the withdrawal of the means of communication used by other relevant persons could allow, if not to obtain evidence in relation to the alleged abuse of the applicants, which occurred a few months before, then at least to obtain evidence of similar cases of violence against children.
(iv) In the end. After conducting an investigation, the Bulgarian authorities formally complied with the request of the Italian authorities and indirectly with the request of the applicants' adoptive parents. However, the Bulgarian investigative authorities - which, in particular, did not use the available mechanisms of cooperation in the field of investigation and international cooperation - did not take all reasonable steps to clarify the facts of the case, and did not conduct a full and thorough analysis of the evidence presented to them. Instead, the Bulgarian authorities limited their investigative actions to interrogating persons from the orphanage or its surroundings and closed the proceedings on the basis of this information alone. Indeed, the reasons given by the Bulgarian authorities for the termination of the proceedings in the case seem to indicate that, instead of clarifying all the relevant facts, the Bulgarian investigative authorities were looking for a way to prove that the applicants' allegations were not true.
The European Court also noted - and considered it unacceptable - that the chairman of the State Agency for the Protection of Children (SACP) made an appeal on television, even before the conclusion of the first inspection of the authorities, in which he accused the applicants' foster parents of slander, manipulation and non-fulfillment of their parental duties, and also that a group of Government members who visited the orphanage followed the same approach. Such statements inevitably had a negative impact on the objectivity - and, thus, the reliability - of the checks carried out by the State Agency for the Protection of Children on the objectivity and reliability of the agency itself.
As a result, the violations found were serious enough to believe that the investigation was not effective for the purposes of article 3 of the Convention, interpreted in the light of other applicable international instruments, in particular the Lanzarote Convention.
In the case, the requirements of article 3 of the Convention (procedural aspect) were violated (adopted by nine votes in favor, with eight against).
By way of application of Article 41 of the Convention, the European Court awarded each of the applicants 12,000 euros in compensation for non-pecuniary damage.