By Yaiza Janssens
Not many ECtHR cases that focus on a possible obligation under Article 8 of the Convention to conduct a criminal investigation and even fewer cases where the facts fall exclusively concern minors. In A, B and C v. Latvia, a Chamber judgment issued on 31 March 2016, the applicants complained that the authorities had failed to investigate their complaints of sexual abuse by their sports coach. The Court found no violation of Article 8. In this post, I will argue that the Court should have concluded that the criminal investigation of the Latvian authorities was not effective.
The applicants, Ms A and Ms B, British nationals, and Ms C, a Latvian national, were born in 1992, 1995, and 1993 respectively. The case concerned their complaint that the Latvian authorities had failed to investigate their complaints of alleged sexual abuse by a sports coach. According to the applicants, they were sexually abused by one of the coaches with whom they trained in a State sports school in Riga, in 2008 and 2009. All three applicants were minors at the time.
In particular, they submitted the following: the coach requested that they attend the sauna fully undressed (Ms. B. refused, Ms. A. attended the sauna naked together with other girls between 13 and 16 years of age); the coach had entered the sauna when Ms. B. was in the sauna half-undressed and told her that she was still little; the coach massaged two of the girls, touching their intimate body parts; the coach had entered the changing room, touching – as if accidentally – the girls’ intimate body parts; he had watched the girls changing; and, during a trip to a competition in Lithuania, he had pressurised one of the applicants (Ms. C) to sleep in the same bed with him, which she refused to do.
Following a complaint by the mother of Ms A and Ms B, who are sisters, the police promptly opened a criminal investigation in January 2010. In the course of the investigation, the police took statements from various individuals, including the applicants and their parents and other former students of the sports coach and their parents. In October 2010 the investigation was closed. The investigator concluded that the investigation had revealed that the sauna sessions had been voluntary. The female students had attended the sauna fully undressed, either on their own initiative or because that was the general practice. The coach had massaged them at their request. The investigator could not establish that the coach had acted with a sexual purpose within the meaning of the relevant section (sexual abuse) of Latvian criminal law. Appeals and attempts to re-open the investigation were dismissed. In the meantime, a civil court found that the actions on part of O.B. had violated the applicants’ right to privacy and ordered him to pay damages to the 3 applicants.
The Court’s reasoning
According to the Court, the main issue in this case is whether the State could meet its positive obligation under Article 8 only by way of a criminal investigation (§130-131).
For the establishment of general principles of its assessment of the case under Article 8, the Court heavily relies on the Söderman v. Sweden case (§§ 78-79). The Court repeats that the choice of the means to secure compliance with article 8 falls within the margin of appreciation of the member states and that there are different ways of ensuring respect for private life. The nature of the state’s obligation depends on “the particular aspect of private life that is at issue”. Next, the Court holds that “regarding, (…), serious acts such as rape and sexual abuse of children (…) where fundamental values and essential aspects of private life are at stake”, member states have to ensure that efficient criminal law provisions are in place. For examples, the court refers to, X and Y v. the Netherlands (§ 27) and M.C. v. Bulgaria, (§ 150).
The Court, relying on its previous ruling in Söderman (§ 85), underlines that “in respect of less serious acts between individuals which may nonetheless violate psychological integrity (§151)”, an adequate legal framework does not always require criminal law provisions (§ 151).
When applying these principles to the case at hand, the Court takes note that “the applicants were below the age of majority” at the time of the events (§ 152). Since the applicants did not complain of a lack of legal framework (§153), the Court proceeds to examine whether the State was required to ensure an effective criminal investigation under article 8 in the specific circumstances of the case (§154).
The Court decides to assess “each set of circumstances” – namely the acts concerning the second applicant, O.B.’s entering the changing room, ‘accidental’ touching of intimate body parts, ridiculing the second applicant while entering the sauna when she was half-undressed and events in Lithuania on the one hand (‘first set of cirumstances’), and the attendance of the sauna and the massaging by O.B. on the other hand (‘second set of circumstances’)– separately, “as the acts at issue were of differing seriousness and thus affected the applicant’s intimate aspects of private life to varying degrees (§ 154)”.
According to the Court the first set of circumstances “did not involve any physical violence or abuse” because the applicant did not allege that OB touched her in a sexual manner. As in the Söderman case the Court finds that the incident could also be addressed with appropriate civil law remedies. With regard to this first set of circumstances, the Court concludes that there has been no breach of article 8, because the Court “is unable to discern any alleged conduct on the part of O.B. of such gravity that an effective criminal investigation would be the only way for the State to fulfil its positive obligation under Article 8 (§§ 157-158)”.
The Court considers the second set of circumstances to be different and more serious. The Court holds that “they cannot be treated as trivial”, even though “they did not attain the seriousness of X and Y v. the Netherlands” (§ 159). After assessing the facts and allegations of the applicants, the Court concludes that the “allegations therefore concerned intimate aspects of the applicants’ private lives” (§ 160). The Court in particular attaches importance to the fact “that the incidents took place in the context of a relationship of trust and authority resulting from O.B.’s position as an educator with respect to the applicants, who were vulnerable due to their young age.” (§161) The Court takes the view that the State was required under article 8 to put its Criminal Law provision (section 162 of the criminal law) into practice through conduct of an effective investigation (§ 163).
In evaluating the effectiveness of the criminal investigation, the Court underlines its subsidiary role several times (§165, §172, §173), finding “no reason to doubt the assessment by the investigator or the prosecution service” (§ 172) and deciding that there were no “significant shortcomings” in the investigation, with reference to the “significant flaw test” applied in Söderman (par. 90) (§173). Therefore the Court finds that the Latvian authorities have met their positive obligation to conduct an effective investigation and finds no violation of article 8.
The Court fails to call into question the effectiveness of the system put in place In Latvia. According to NGO data, many Latvian children are confronted by sexual violence such as rape or abuse. In its most recent Concluding observations on the third to fifth periodic reports of Latvia, the Committee on the Rights of the Child expressed concern about the “lack of a comprehensive information system on violence against children , including on […] investigations, prosecutions […]” and the “lack of detailed information regarding response to known cases of violence” Although the Court mentions the interpretation of the CRC in General Comment 13 that “investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights-based and child-sensitive approach”, in its analysis, the Court does not express explicit concern about the lack of a context-sensitive assessment of this case of violence against minors by the authorities (as opposed to C.A.S. and C.S. v. Romania, §78, § 81 and M.C. v. Bulgaria § 177).
The Court distinguishes between the two ‘sets of circumstances’, considering the first set to be “less serious” than the second, thus concluding that the incident could be addressed with civil law remedies. Generally speaking, looking at a child who is undressing or unclothed is assumed to be sexually motivated in extra-familial situations. Also, “repeated ‘accidental’ touching sexual body parts, especially in pubertal children, is suggestive of sexual motivation”. Furthermore, explicit sexual remarks or observations, such as comments about the child’s physical development may signal that a sexual component is present. All these elements were present in the ‘first set of circumstances.’ Furthermore, the events took place in the same context (school and sports team), by the same perpetrator, in the same relationship of trust and authority. This, together with the fact that minors were involved, should be enough to conclude that both sets of circumstances cannot be regarded as trivial and thus require an overall adequate criminal investigation.
Furthermore, it is quite clear from the facts that boys were treated in a different way by the coach (for example, they had not been asked to attend the sauna undressed (§ 81) and the boys travelling with C. and O.B. to Lithuania were not asked to sleep in the same bed as the coach (§§32-34)). The parents explicitly signalled that the coach had been interested in naked girls (§81). Violence against children often has a gender component and girls may experience more sexual violence than boys. Moreover, puberty intensifies the vulnerability of girls to violence. Girl children and adolescent girls are often vulnerable to sexual abuse by older men. Both the domestic authorities and the Court did not, regrettably, take into account the gender aspect of the case.
 http://www.humanium.org/en/europe-caucasus/latvia/, see also the dissenting opinion of Judge Mits.
 CRC, Concluding observations on the third to fifth periodic reports of Latvia ( CRC/C/LVA/CO/3-5), para. 36.
 L. Berliner, “What is sexual abuse?” in Handbook for child protection Practice, accessible at: http://edge.sagepub.com/sites/default/files/10.10_What_Is_Sexual_Abuse.pdf
 “Adolescent girls in particular may encounter more unwanted or insistent sexual advances as they physically mature and begin to assume a sexual identity” – Unicef, A statistical snapshot of violence against adolescent girls, p. 1, p. 11, available at http://www.unicef.org/publications/files/A_Statistical_Snapshot_of_Violence_Against_Adolescent_Girls.pdf
 CEDAW, General recommendation no. 24, para. 12 (b).