By Elena Patrizi, PhD Candidate at the Faculty of Law and affiliated with the Centre for Children’s Rights Studies, University of Geneva, Switzerland
On 22 June 2021, the Third Section of the European Court of Human Rights (hereinafter: ECtHR) released its judgment on the case of R.B. v. Estonia, a case concerning the effectiveness of a criminal investigation into allegations of sexual abuse of a 4-year child by her father. The case was brought before the ECtHR by the child, R.B., who alleged a violation of her rights under Articles 3 (Prohibition of torture) and 8 (Right to respect of private and family life) of the European Convention of Human Rights (hereinafter: ECHR). The father, the alleged perpetrator, was acquitted by the Estonian Supreme Court, which excluded decisive evidence on the ground that it was obtained in breach of procedural rules.
The ECtHR established that the Estonian justice system failed to be child-friendly as it did not take into account the child’s particular vulnerability and corresponding needs. On the contrary, it strictly applied the rules concerning the children’s testimony, which do not distinguish between children and adults. This resulted in a violation of the two provisions. As I will argue in this blog post, the judgment is important for reminding the contracting states that, although they have the difficult task of dealing with very sensitive cases, they can adequately protect the rights and needs of children through an effective child-friendly justice system.
The applicant, R.B., was born in August 2007. Since her parents divorced in 2010, she used to meet her father outside the family home. As R.B. began behaving differently, her mother questioned her, suspecting harm caused by the father. R.B. described the meetings with her father and disclosed the alleged abuse. When R.B. was about four and a half years old, in March 2012, she reported to the police that she had been sexually abused by her father. Following this claim, a criminal proceeding was instituted against him.
As a result of an expert assessment and because of her young age, R.B. was not called to testify in court. In fact, as provided by domestic law, in cases involving a sexual offense, child witnesses or victims may not appear in court to prevent secondary victimisation. Accordingly, two interviews of R.B. were video-recorded in the pre-trial stage, to be disclosed at the hearings. The testimonies were given in the presence of her mother, her lawyer and a psychologist. The investigator also commissioned psychological and physical examinations of R.B. and interviewed several witnesses.
R.B.’s father was convicted in 2014 by the first-instance court and sentenced to 6 years of imprisonment for rape and involvement of a minor in satisfaction of sexual desire, as foreseen by criminal domestic law. He later filed an appeal against this conviction based on the motivation that R.B.’s testimony was unreliable due to her young age at the time and to the fact that she had been influenced by her mother. The Court of Appeal dismissed the appeal and upheld the judgment of the first-instance court. After the second appeal, the Supreme Court ruled that R.B. had to been informed by the investigator, prior to questioning, of her procedural rights, namely the duty to tell the truth and the right not to testify against a member of her family. The lack of such communications constituted a material breach of Estonian criminal procedure law resulting in the exclusion of the evidence so obtained. As these errors could not be remedied by referring the case back to the first-instance court for the hearing of the child, the Supreme Court quashed the previous judgments and acquitted R.B.’s father.
R.B. then turned to the ECtHR, claiming that the Estonian authorities breached her rights under Articles 3 and 8 of the ECHR as they failed to conduct an effective criminal investigation into her allegations of sexual abuse.
The reasoning begins by considering that the national authorities ensured the correct application of criminal law provisions following R.B.’s allegations. For instance, they acted promptly on the allegations of sexual abuse, the interviews were conducted by a same-sex investigator from the child protection service in the presence of her mother, her lawyer and a psychologist, and were video-recorded. However, the Strasbourg judges identified some procedural deficiencies on the part of the Estonian judicial authorities, as the evidence was obtained without informing R.B. of her procedural rights.
Criminal procedural law provides that, prior to the questioning, R.B. had to be informed by the investigator of certain instructions, such as her duty to tell the truth and her right not to testify against a member of her family. As the information had not been provided, the Supreme Court found RB’s testimony inadmissible and acquitted the alleged perpetrator. The acquittal was made possible because R.B.’s statements were the only evidence supporting the conviction. The Supreme Court held that the authorities’ capability of establishing the facts and determining the culpability of the person responsible was undermined by the omissions. The young age of the witness should be taken into account when conducting the questioning, but could not lead to disregarding the obligation to inform her of her duties and rights.
As explained by the ECtHR, Estonian law on the questioning of witnesses does not distinguish between procedural rules for adults and children. However, according to settled ECtHR case-law, when there are child witnesses or victims, criminal law mechanisms should be based on a child-friendly approach so as to take into account their vulnerability and treat their best interests as a ‘primary consideration’. Following this rationale, when children are questioned due account must be given to their age and level of development. Therefore, the way the lower-instance courts acted (investigator trained on children’s rights, presence of supportive adult like her mother, video-recording RB’s interview) can be considered adapted for child witnesses. Nevertheless, since Estonia’s law on the questioning of witnesses does not provide exceptions or adaptions for child witnesses it should not have been applied so rigidly in the case of the testimony of a four and a half-year-old child. This means that Estonia’s law is not adapted to the Court’s requirements, as there should be less strict rules for the testimony of children and a legislative change is necessary.
In conclusion, the ECtHR found that the procedural response to the applicant’s allegations had ‘significant flaws’ that undermined the effective prosecution of R.B.’s sexual abuse. Moreover, her particular vulnerability and needs were not sufficiently taken into account. This led the ECtHR to unanimously decide that Estonia violated Articles 3 and 8 ECHR based on the merits of the case. The ECtHR, as often happens in cases of sexual violence against children, assessed the two provisions simultaneously without any consideration of the differences between the rights at stake.
As a matter of general observation, the ECtHR recalled that States Parties’ authorities have positive obligations to take all measures to protect the physical and moral integrity of every individual, including against the actions of private actors, by criminalising acts of violence. These positive obligations require the adoption of effective criminal law provisions aimed at responding to, investigating and remedying criminal conduct. And in some cases, they extend to questions relating to the effective nature of investigations and prosecutions (see M.C. v. Bulgaria). The ECtHR recalled, referring to previous case-law, which elements must be present to determine whether there is an ‘effective investigation’. In particular, the authorities must initiate an official investigation and take reasonable measures at their disposal to gather evidence, establish the facts, identify and punish those responsible while respecting the reasonable length of the trial. Moreover, if children and other vulnerable people are involved, they are entitled to effective protection to avoid further suffering (see X and Y v. the Netherlands).
According to relevant international instruments, the investigator must disclose and explain the relevant provisions to the witnesses before questioning. In particular, they must be properly informed about the modalities and objectives of the hearing and advised of their rights and duties in order to ensure the full validity of the witnesses’ statements. In the current case the failure to inform R.B. concerns the right not to testify against a next of kin and the duty to tell the truth. The first refers to the exception under Estonian law of refusing to answer questions and remaining silent on the grounds that the witness may find it difficult to choose between telling the truth or harming a close relative. The second refers to the duty to inform R.B. that she is under the strict obligation to tell the truth when testifying. It means that she must truthfully tell everything she knows without omitting anything or distorting the truth.
Grounded on these principles, the ECtHR’s judgment shows a clear children’s rights-based perspective. The wording of the judgment leaves little doubt that it echoes the principles of child-friendly justice contained in the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice. In particular, children have the right to be heard on matters concerning them (Article 12 of the United Nations Convention on the Rights of the Child). When questioning children who are witnesses or victims, their age, maturity and evolving capacities should be taken into account. During the gathering, taking and testing of evidence from children, the strict rules that usually applies to adults should not be used. The atmosphere should be child-friendly, and procedures simplified to give priority to children’s best interests. Moreover, the application of simplified rules should not diminish the value of their testimony or evidence. This means that member states’ criminal systems must therefore be adapted to the needs and special situation of children, based on rigorous assessment on a case-by-case basis (see here). In fact, the ECtHR rejected the strict interpretation of the procedural rules that failed to take into account the specificity of R.B.’s situation, her young age and the need to be treated differently from adults. This strict application of the rules led to excluding the evidence and left the victim’s allegations without response.
In addition, this case shows that in proceedings involving an alleged sexual offense against a child, especially when committed in a familiar environment, the courts and investigators should draw specific attention to the child’s particular vulnerability and support the child in every way. Testifying in criminal proceedings about facts and circumstances related to hypotheses of violence suffered in the family environment is always a difficult and psychologically heavy experience, especially if the victim or witness is a child. Therefore, the authorities must pay particular attention to the child’s right to dignity and psychological integrity to avoid further victimisation (see G.U. v. Turkey). Already in previous cases, the ECtHR has described sexually abused children as “particularly vulnerable”, however it is not really clear who falls under this category of vulnerability (see A and B v. Croatia). It is precisely because of the vulnerable situation of children that, according to the ECtHR, States should put in place procedural rules that safeguard the testimony of children during both the preliminary investigation and the trial (see G.U. v. Turkey). The ECtHR also seems to underline the importance that justice system professionals have specialised training on the rights of the child and work together to ensure the respect and effective implementation of children’s rights.
Moreover, as in similar previous cases, one can note the lack of an explicit reference by the ECtHR to the importance that child victims effectively participate in criminal proceedings. Perhaps this can be deduced from the emphasis the Strasbourg Court places on special safeguards to protect children in proceedings. Indeed, the ECtHR highlighted the importance of Member States organising their judicial systems in a child-friendly manner and this ultimately facilitates their participation in the proceedings. The aim of a child-sensitive process is to ensure stricter protection and at the same time to provide greater flexibility in response to their evolving capacities. In fact, as this case demonstrates, applying rigidly the rules laid down for adults carries the risk of re-traumatising the child.
This case plays an important role in promoting child-friendly procedures not only in Estonia but across Europe. The case underlines once again the importance that governments bring their justice systems in line with children’s rights and realise child-friendly justice before, during and after legal proceedings. In conclusion, with this judgment, the ECtHR confirms its child-sensitive approach, recognising that, in cases involving sexual assault or other violence, children are deemed to be in need of special protection measures by the authorities, and that their vulnerability is a source of increased accountability of Member States.