Victims of ‘vulnerability’: Balancing protection, privacy and participation of child victims in X and Others v. Bulgaria

By Prof. Dr. Ton Liefaard[*], Jessica Valentine (LL.M)[†] and Lisanne van Dijck[‡]

‘This is a sad case’ begins the joint partly concurring and partly dissenting opinion of Judge Spano and others in the case of X and others v. Bulgaria. The judgment, delivered by a Grand Chamber of the European Court of Human Rights (ECtHR) on 2 February 2021, certainly concerns sad circumstances: three children (siblings) were abandoned by their mother and placed in an orphanage in Bulgaria where they were allegedly victims of sexual abuse before being adopted by an Italian couple. The separate opinion notes the case concerns ‘some of the most vulnerable of applicants that have come before this Court’. The applicants allege that, following their claim that they had been subjected to sexual abuse at the orphanage, the Bulgarian authorities failed in their positive obligation to protect them against that treatment and in their obligation to conduct an effective investigation into those allegations.

In a divided judgment, the Grand Chamber ultimately found that the Bulgarian authorities had breached their procedural obligation under Article 3 of the ECHR, which requires authorities to conduct an effective investigation into arguable claims of torture, inhuman or degrading treatment. Although the Bulgarian authorities had taken a series of investigative steps, the Grand Chamber ultimately found that these had not met the required level of ‘effectiveness’. One of the reasons for this was a failure to take any steps to involve the victims in the investigation (§208). In its interpretation of Article 3, the Grand Chamber took into account other applicable international instruments and in particular the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (the ‘Lanzarote Convention’).

The joint separate opinion by Judge Spano and others suggests that the majority’s desire to respond to the applicants’ ‘sad story’ leads it astray (§2). The decision, according to this opinion, potentially exposes future child victims to excessively intrusive and unreliable investigative measures (ibid). We argue below that the dissenters’ reading risks overlooking the procedural rights of children.

Facts

The applicants were born in 2000 (older brother) and 2002 and 2003 (two sisters), respectively. The children were placed in an orphanage in Bulgaria after being abandoned by their mother. In June 2012, the children (then aged 12, 10 and 9) were adopted by an Italian couple and moved to Italy. Three months later, the children disclosed to their adoptive parents that they had engaged in certain sexual practices among themselves and that they had been subjected to sexual abuse at the orphanage. The adoptive parents reported the complaint to various Italian authorities.

In 2013, the Bulgarian authorities became aware of the complaints and subsequently took a number of steps to investigate (divided into three preliminary investigations), including checks by social services and the opening of a preliminary police investigation. Ultimately, the case was discontinued as the public prosecutor’s office considered the evidence was not sufficient to establish any offences.

The application to the ECtHR was lodged in 2016. Relying on Articles 3, 6, 8 and 13 of the Convention, the applicants claimed they had been the victims of sexual abuse while they were living in the orphanage and that the Bulgarian authorities had failed in their positive obligation to protect them against that treatment and to conduct an effective investigation (§148). In 2019, the Chamber (choosing to consider only the complaints under Articles 3 & 8) unanimously held there had been no violation of either article. However, the complaint was ultimately accepted by the Grand Chamber in 2019 and heard in 2020.

Judgment

The Court’s Grand Chamber considered it ‘more appropriate’ to examine the complaints under Article 3 (§149). It unanimously ruled that there had been no violation of the substantive limb of Article 3 of the Convention. Whether there had been a violation of the procedural limb of Article 3 was a much more divisive issue: by nine votes to eight, the Grand Chamber ruled there had been.

No violation of the substantive limbs of Article 3 of the Convention

Appropriate legislative and regulatory framework

The Grand Chamber turns first to thepositive obligation to put in place an appropriate legislative and regulatory framework(§194-196). Noting the particular vulnerability of children in institutions, it finds the legislative and regulatory framework of Bulgaria satisfactory to protect children living in institutions against serious breaches of their integrity: the Bulgarian Criminal Code punishes sexual abuse of minors, and the Child Protection Act protects children from all forms of violence, whilst incorporating the child’s best interests as a guiding principle (§§115 & 121). Furthermore, a specialised authority, the State Agency for Child Protection, is tasked with carrying out periodic inspections of children’s residential facilities and competent to take steps to protect children where shortcomings are detected (§195). The Grand Chamber also notes the children’s facilities prevented outsiders from accessing the orphanage; the children were always under supervision; they had visits from an outside general practitioner and psychologist as well as access to a telephone and the number of a helpline for children in danger.

Preventive operational measures

The Grand Chamber turns only briefly to the positive obligation to take preventive operational measures (§197-198). It finds that there is no sufficient information to establish that the authorities should have known of the real and immediate risk that the children were being subjected to ill-treatment. The Grand Chamber notes that the psychologist and a general practitioner who monitored the children on a regular basis had not detected any signs of violence or sexual abuse.

Violation of the procedural limb of Article 3 of the Convention

Turning to the procedural aspect of Article 3, the Grand Chamber finds that the several shortcomings in the investigative steps taken by the Bulgarian authorities amount to a violation. Although the authorities took a number of investigative measures – and did so speedily, as warranted by the circumstances (§203-206) – the investigation was not thorough enough (§211). The on-site checks conducted by child protection services and police officials fell short of the standards set out in the Lanzarote Convention: children were not interviewed in a way adapted to their age and level of maturity (§211); interviews were not video-recorded; and one child had to be interviewed twice (contrary to what the Lanzarote Convention calls for in Article 35(1)&(2)). The authorities also failed to follow certain lines of inquiry: thus, no attempt was made to (assess the need to) interview the applicants and their parents (§215), put measures in place to assist and support the applicants (§216), request a medical examination of the applicants (§219), interview other children who had left the orphanage in the meantime (§220) and consider, given the nature and seriousness of the alleged abuse, investigatory measures of a more covert nature (§221).

Throughout its assessment of the procedural limb, the Grand Chamber relies heavily on the standards set out in the Lanzarote Convention (Articles 12-14 and 30-38). It also notes that the procedural obligation to conduct an effective investigation is incorporated in other international instruments, including Article 19(2) of the United Nations Convention on the Rights of the Child (UNCRC). This reliance on international instruments is clearly an issue of contention as it is both criticised and praised (and elaborated upon further) in the separate opinions. While the opinion of Judge Spano and others is critical of the majority’s application of the Lanzarote Convention in such a way as to ‘giv[e] content to the investigative obligation’ under Article 3, two other separate opinions take pains to underscore the importance of this particular element of the majority decision, albeit from different angles. The opinion of Judge Turkoviç and others underscores the ‘crucial’ relationship between Article 3 of the ECHR and international human rights instruments in the context of investigations into child abuse in institutions whereas the opinion of Judge Serghides emphasises the harmonious relationship between provisions of the ECHR and Council of Europe treaties and international instruments more broadly.

The Grand Chamber cites Article 31(1)(c) of the Lanzarote Convention in its assessment, highlighting the need to enable child victims ’to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered’ (§214). The Grand Chamber notes the dual role of the children as victims and witnesses and the need to assist and support the children in their capacity as witnesses. For example, the Bulgarian authorities could have travelled to Italy in the context of mutual legal assistance or requested the Italian authorities to interview the applicants again.

The Grand Chamber acknowledges the risks involved in hearing children in such cases, including the potential to exacerbate trauma and the possibility that accounts would be tainted or not yield conclusive results. Despite these risks, the Grand Chamber finds that the authorities should have assessed the need to request such interviews, which was apparently not considered by the authorities. In fact, the second and third investigations did not involve taking any evidence from applicants directly; they did not even watch the video recordings of statements taken from them in Italy (§226).

The Grand Chamber, again citing Article 31(1) of the Lanzarote Convention, finds it ‘regrettable’ that the Bulgarian authorities did not contact the applicants’ parents to provide necessary information and support. This prolonged the proceedings and prevented the parents from lodging a timely appeal (§208). The Grand Chamber notes that the Bulgarian authorities, regarding their doubts about the allegations, could have put measures in place to assist and support the applicants; travelled to Italy for legal assistance; filed a request to interview the applicants and their parents; and asked the professionals who had heard the children’s statements for relevant information or requested the Italian authorities to interview the applicants again.

Commentary – Balancing protection, privacy and participation of child victims

This is an important judgment from the perspective of international children’s rights, in particular for children who are victims of rights violations while being in institutional care. For these children, access to justice forms a vital element of their rights protection. However, children often face a number of barriers in accessing justice (UN High Commissioner for Human Rights, 2013), one of which is related to the closed nature of institutions standing in the way of effective investigations and evidence gathering. This case confirms that children’s rights may be inadequately protected if state authorities do not show the required level of diligence and rigour. The transnational nature of this case appears to have created an additional hurdle. It is therefore promising that the Grand Chamber has explicitly considered the level of vulnerability of child victims in institutions in assessing the diligence of the state authorities under Article 3 of the ECHR.

Yet, the joint partly concurring and partly dissenting opinion of Judge Spano and others suggests that the Grand Chamber’s majority made a mistake in doing so. The opinion claims that the majority’s ‘desire to respond to the applicants’ sad story’ has brought about uncertainty as to the protection of privacy rights of victims in similar cases. It might put at risk, the dissenters’ argument goes, ‘the best interests of other children who find themselves in a similarly vulnerable position, by encouraging excessively intrusive and finally unreliable investigative measures’ (§2). It is commendable that the minority underscores the need to consider the privacy rights of potential future child victims as well as the need to assess their best interests. However, doing so in a way that pits privacy rights and best interests against the notion that child victims should be involved overlooks the fact that the views of a child are a ‘vital element’ of any assessment of the child’s best interests (Committee on the Rights of the Child, General Comment No. 14 § 89; see also General Comment No. 12). Taking into account the views of a child would not jeopardise a child’s right to privacy, provided adequate support is in place. The dissenters’ approach suggests ‘best interests’ of children should outweigh a consideration of the procedural rights of children, which is on strained terms with international children’s rights.

As mentioned above, the significance of access to justice for children as a means to seek effective remedies for rights violations (Liefaard, 2019) should not be underestimated. This is even more true for children placed in institutions such as orphanages. The Grand Chamber’s judgment rightly highlights that institutionalised children generally find themselves in a very vulnerable situation: they are at a much higher risk of multiple rights violations than children under parental care (Global study on children deprived of their liberty, 2019). The capacity for children to secure adequate rights protection in their own right without being entirely dependent on their legal representatives is often not recognised, and rarely do state authorities show the required level of rigour to effectively investigate allegations of rights violations.

Children in institutions therefore require additional safeguards to ensure they can make complaints. The Grand Chamber’s assessment of the substantive aspects of Article 3 is somewhat superficial in this regard. Although it establishes that the legal and regulatory framework applies penalties for abuse, and notes that a state’s duty is heightened in situations where children are deprived of parental care, it does not consider in much detail the steps involved for a child in such a context to bring a complaint. What information or guidance do children in these contexts have concerning their right to be free from (sexual) violence and to access remedies in case of rights violations? And what are they told about the telephone hotline, for example? Given that the Grand Chamber counts on the presence of a psychologist and a general practitioner (§§195 & 198), its reasoning could have been strengthened if it had contemplated whether this was a person the children trusted and who had relevant training to be able to assist them in making a complaint. Such an approach would have reflected European and international standards regarding the protection of children in alternative care and of children deprived of liberty.

On a positive note, the Court’s reliance on Article 31(1) of the Lanzarote Convention is commendable: it reflects the need for children to participate in an investigation, and indirectly references Article 12 of the UNCRC on the child’s right to be heard, the Council of Europe’s Guidelines on child-friendly justice as well as the United Nations Guidelines for the Protection of Children as Victims or Witnesses. Although it is regrettable that the Grand Chamber does not explicitly incorporate, into its analysis, the need to enable child victims to decide the way in which they will be heard, it is promising that the Court’s conclusion nonetheless places a strong obligation on state authorities to do more to seek to involve child victims in their investigations. The fact that Judge Spano and his fellow dissenters point at children’s particular vulnerability in this regard is completely justified and should be taken at heart by investigatory authorities. Yet, the dissenters go too far in asserting that the Court’s reasoning or conclusion may put the best interests of children in similar situations at risk without recognising the international guidance and the many efforts made in European jurisdictions to optimise the protection of child victims and witnesses in criminal investigations and trials.

It is welcome that the Court underscores the importance of providing ongoing information and support to the parents, and that it notes that the Bulgarian authorities’ failure to do so prevented a timely appeal (§208). However, in doing so, the Court appears to assume that the rights of the children are only realised through their parents. It overlooks the potential role and involvement of the children themselves (at this point the oldest would have been around 14 years old) and their own need for and right to access information and support. Children need to be heard and seen, and states need to ensure their views be given due weight in all decision-making processes (see also Article 12 UNCRC; General Comment No. 13 § 3(e)) – a message that the Court does not engage with in this case.

The Court also notes the need to prevent unduedelay but stops short of explaining why this is important in cases concerning children. This is a pity, as this case illustrates the problem that lengthy proceedings mean that the children have become adults by the time the judgment is delivered. These reflections resonate with other writing (see e.g. Skivenes, 2019; Fenton-Glynn, 2021) on the Court’s lack of willingness to develop an approach that fully recognises children as rights holders with rights and freedoms independently from their legal representatives, including parents. Compare this with the approach of the Committee on the Rights of the Child, which regularly emphasises the procedural rights of children (see e.g. Ceriani Cernadas, 2020). The recent decision of the European Committee on Social Rights, in International Commission of Jurists v. Czech Republic, also underscores the significance of a child’s procedural rights.

Further reflecting a lack of recognition of children as rights holders is the Court’s failure to mention the need to conduct an individualised assessment of the children: the children differ in age and gender, and were allegedly subjected to different levels of abuse. Furthermore, the impact of stress does not generally mean children do not wish to participate and should not be used as a reason to overlook their right to be heard (Bruning & Peper, 2020). 

Conclusion

Overall, the Grand Chamber’s judgment sends a promising message about the procedural rights of child victims in investigations in the context of institutions, suggesting ‘vulnerability’ as such need not prevent a child from being involved in a case in which much is at stake for them. The significance of this message should be acknowledged also in light of the 2019 United Nations Global Study on Children Deprived of Liberty, which has drawn our attention to the particular vulnerability of children in orphanages and other care institutions whilst underscoring the importance of children’s access to justice. The Grand Chamber’s judgment not only builds on the ECHR but also on the broader legal framework in place to protect children against sexual violence, including the UNCRC and the Lanzarote Convention. It shows the Court’s continuous willingness to recognise that the ECHR evolves as a living instrument forming part of a multi-layered framework of international law (see e.g. Kilkelly and Liefaard, 2019; see also the partly concurring opinion of Judge Serghides).

At the same time, it was a close call. The Grand Chamber’s split, the partly dissenting opinions and the Court’s reasoning suggest that despite the increasing references to children’s rights standards, the Court continues to struggle to comprehensively approach and protect children as rights holders.


[*] Vice-Dean and UNICEF Chair in Children’s Rights, Leiden Law School, Leiden University, The Netherlands

[†] Researcher at Leiden University, Department of Child Law

[‡] Research Assistant at Leiden University, Master of Laws: Advanced Studies in International Children’s Rights

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