A and B. v. Croatia and the concurring opinion of Judge Wojtyczek: the procedural status of the ‘disappearing party’

Claire Loven – PhD researcher at the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University)

On 20 June 2019 the European Court of Human Rights (ECtHR or Court) delivered a judgment in A and B. v. Croatia on the investigation of allegations of child sexual abuse. A, the mother of B, accused B’s father of sexually abusing the four-year-old B. After the Croatian State Attorney’s Office decided against prosecuting the father, finding that it could not conclude that C had committed any prosecutable offence, A and B lodged a complaint before the Court. They complained about the failure of the Croatian authorities to provide a proper response to allegations of child sexual abuse. By four votes to three the Court found that there had been no violation of the procedural aspects of Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life). The sharp division within the Chamber is not only reflected in the bare majority vote on the outcome, but also in the fact that, together, the concurring and dissenting opinions are just as long as the Court’s judgment. The joint concurring opinion by Judges Koskelo, Eicke and Ilievski and the joint dissenting opinion by Judges Sicilianos, Turković and Pejchal focus on the scope of the case, whilst Judge Wojtyczek raises the issue of the father not having a role in the Court’s proceedings. In this blogpost, I leave the issues raised by Koskelo et al. and Sicilianos et al. for other commentators, and focus on the particular issues raised by Wojtyczek.

Facts of the case

The applicants, in this case, are A and B, a mother and her daughter. Although A and C (B’s father) were not living together anymore, B saw her father regularly and spend several nights a week at her father’s place. When B was four years old, A accused C of sexually abusing B. A saw indications of this in B’s behaviour; B had asked her aunt to “touch herself down there” and told her that “daddy has been playing with her” (§11). The allegations were investigated by the police and a polyclinic for the protection of children. The police, inter alia, interviewed a paediatrician who had treated B, two of B’s teachers and the father. At the polyclinic, B was examined by a team of medical and psychological specialists. These specialists did not find clear signs of sexual abuse. What they did find was that B behaved in an inappropriately sexualised manner, but they noted that this behaviour was not due to sexual abuse by the father. They, moreover, concluded that B suffered severely under the disrupted relationship and conflicts between her parents and that B showed indications of being pressurised by A to make statements against C. These findings caused the State Attorney’s Office to not prosecute C. Subsequently, A and B complained at the Court about the domestic authorities’ failure to provide a proper response to the sexual abuse allegations against C and the lack of an effective remedy in this regard.

The Court’s judgment

In the procedure in Strasbourg, the Court, quite uniquely, requested the Croatian Bar Association to appoint a lawyer to submit observations on behalf of B (Rule 36§4(b)). This was necessary, according to the Court, because of “the nature of the relationship between the first applicant and the alleged perpetrator and a potential conflict of interest between the applicants” (§3). The Court, furthermore, found that A’s complaints were inadmissible ratione personae since the case concerned B only and there were no circumstances that indicated that A herself was also a victim of the alleged violations. When assessing the merits of the case, the Court examined the effectiveness of the investigation into the allegation against the father and the alleged lack of inadequacy of measures to protect the rights of a child in criminal proceedings who had been an alleged victim of sexual abuse (§105). The Court, firstly, concluded that in Croatia, an appropriate legal and regulatory framework exists for the protection of the rights under Articles 3 and 8 ECHR. The legislation provides for the effective punishment of those responsible for sexual abuse of children, which is an aggravated offence, and ensures special rights of a child victim of a criminal offence (§117-120). The Court, secondly, reasoned that the domestic authorities acted promptly on the allegations of sexual abuse and had done everything that could reasonably have been expected of them to protect the rights of B and to act in her best interests (§121-128). The appointment in the polyclinic was, for example, made four days after the incident was reported and the police had urged the polyclinic to deliver its findings as soon as possible. B, moreover, had been examined by various specialists and the police had interviewed several witnesses, including professionals and family members related to B. The extensive investigation had confronted the police with two conflicting accounts, little direct evidence and inconclusive expert reports. This brought the Court to the finding that the case did not disclose “any culpable disregard, discernible bad faith or lack of will on the part of the police or the prosecuting authorities” (§129). Thus, the Court did not find a violation of Articles 3 and 8 ECHR.

Judge Wojtyczek’s concurring opinion

In his concurring opinion, Judge Wojtyczek raises the particular procedural issue of the father not having a role in the Court’s proceedings, even though his rights and interests are clearly involved and may be affected by the Court’s judgment. As summarised by Wojtyczek: “A multidimensional and multi-subject case at the domestic level is reduced to a one-dimensional, binary applicant-State relationship before the Court” (§3). ‘Multidimensional’ and ‘multi-subject’ refer to cases at the domestic level involving a bundle of conflicting or diverging rights and interests of several persons. In the case of A and B, these rights and interests are the rights and interests of B’s father (C). C was not only involved in the case because of his role as the father and legal representative of B (during the proceedings before the Court C became the only legal representative under domestic law), but also because of his role as the accused person. As a consequence of the latter, his own rights and interests were also involved. C was, however, not a party to the Court’s proceedings and thus did not claim his rights before the Court nor assert his interests. Wojtyczek argues that this poses several procedural problems; in fact, more strongly put, he holds that this constitutes a “fundamental flaw of the proceedings before the Court” (§9). One of these procedural problems is that “the Court may get only a fragmentary account of the relevant facts” (§3) as the Court is solely confronted with the version of facts and the arguments presented by the applicant(s) and the Convention State. Another procedural problem indicated by Wojtyczek relates to the Court’s balancing exercise. When examining a complaint, the Court examines whether the domestic authorities struck a fair balance between all the rights and interests at stake. This balancing exercise may, however, be “flawed’’ according to Wojtyczek, when the Court is presented with only one part of the relevant rights and interests at stake. The final procedural problem indicated by Wojtyczek is the fact that the party not involved in the Court’s proceedings may be affected, albeit indirectly, by the Court’s judgment. This indirect effect can manifest itself in different ways. The Court’s judgment may, for example, lead to the initiation of new proceedings at the domestic level in which the Court’s judgment may be a determinative argument. In other words, the Court’s judgment “may be a valuable asset in future legal battles against the same litigants” (§4).

The ‘disappearing party’: incident or trend?

The issues raised by Wojtyczek do not only manifest themselves in the case of A and B, but can also be seen in other family life cases as well as other type of cases, including those concerning the right to reputation and respect for private life vs. freedom of expression and cases on employer-employee relations.  With respect to private life vs. freedom of expression cases,  in Von Hannover nos. 1 and 2, the Princess of Hannover tried to prevent the publication of photos about her private life in the tabloid press. Her legal actions had no effect, however, as the domestic courts did not grant an injunction against any further publication of the photos. As the Court could not deal directly with the publisher’s behaviour, the Princess complained before the Court about the lack of adequate State protection of her private and family life. Before the Court, however, the publisher responsible for the alleged fundamental rights violation could not be involved in the procedure and was replaced by the State. To give an example of an employer-employee case, in Bărbulescu the applicant complained about the State’s failure to comply with its positive obligation to protect the right to respect for private life and correspondence; while at the domestic level the case had involved both the employer and employee, the employee challenging his dismissal because it was founded on the employer’s monitoring of his communications. All these cases have in common that, because of the vertical nature of the Court’s proceedings, one of the two parties involved in the horizontal case at the domestic level ‘disappears’ from the Court’s proceedings. The A and B case is slightly different because the domestic proceedings involved a criminal allegation and not a private law dispute. As described above, however, C’s rights and interests were clearly involved in the proceedings at the domestic level, as C was the accused person, the father and legal representative of B.

On the basis of Article 36 ECHR, the ‘disappearing party’ has the right to intervene in the Court’s proceedings. This is also the most obvious objection that can be made against Judge Wojtyczek’s concurring opinion: if the father would have liked to have his say, there was a legal possibility for doing so. Interestingly, however, in the Court’s case law, only few examples can be found of cases in which the ‘disappearing party’ did actually intervene. To illustrate, in the already mentioned Von Hannover case the company responsible for publishing the photos intervened. In Mandet, a family life case on the recognition of paternity, the biological father intervened in the Court’s proceedings. Before the Court, the legal parents and the child had claimed that the recognition of the paternity of the biological father violated their right to private and family life. As a third party intervener, the biological father provided the Court with a different reading of the facts and, for example, pointed out that the mother had obstructed any contact between him and the child, which had been the circumstance that led him to initiate proceedings to have his paternity legally established (§42).

Although the ‘disappearing party’ rarely intervenes in the Court’s proceedings, the Court’s case law illustrates that it is important for the ‘disappearing party’ to have its voice heard. In cases like Von Hannover the Court, for example, pays particular attention to the question whether the journalist or publisher acted in good faith or verified the facts properly, even though this journalist or publisher is not a direct party to the Court’s proceedings. Furthermore, in employer-employee cases the Court sometimes takes into account the employer’s interests, while this employer will not be able to explain or defend these interests himself (see e.g. Eweida and Others; Schüth; Bărbulescu). Finally, a Court’s judgment may indirectly affect the ‘disappearing party’ in a more substantive way.  For example, in Bărbulescu the Court found that the domestic courts should have taken into consideration the scope of the monitoring and the degree of the intrusion into the applicant’s privacy, and whether the aim could have been achieved by less intrusive methods. This judgment may indirectly affect the ‘disappearing party’, i.e. the employer, as it could entail that the established domestic mechanisms for checking whether employees are performing their professional duties adequately can only be kept in place when they are accompanied by adequate and sufficient safeguards. In an intervention, the ‘disappearing party’ could explain such effects and thereby influence the Court’s judgment. Perhaps, however, it cannot always be expected of private parties that they voluntarily offer to submit observations. Thus, it seems fair enough that  Judge Wojtyczek argues that the Court should have invited the father to present his observations as the father and as the legal representative of the applicant, and as a party whose own rights and interests may have been affected by the outcome of the proceedings (§6). In this way, the father could have expressed his views on the best interests of the child and defended his own rights and interests. The question that remains if this is enough to address the procedural challenges that Judge Wojtyczek observes? The Court’s case law, for example, shows that when the ‘disappearing party’ uses the opportunity of third party intervention, the Court rarely refers to the third party submissions. Furthermore, Judge Wojtyczek focuses on the consequences for the ‘disappearing party’, but there might also be consequences for the Convention States or the Court itself. In a way, for example, it might seem odd that Convention States have to defend the acts or represent the interests of the ‘disappearing party’. Moreover, it is open to question if the Court is really able to address the underlying ‘horizontal’ fundamental rights problem in a case that is ‘verticalised’ to bring it before the Court. In other words, the issue of the ‘disappearing party’ confronts the Convention system with several challenges which need to be addressed, and it is certainly to be commended that Judge Wojtyczek has opened the floor for a debate on this.

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