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.

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An Endeavor Towards More Situational Positive Obligations Stemming from Article 2: Case of Kotilainen and others v. Finland

Elina Pekkarinen is a university instructor and PhD candidate in Tampere University. Her dissertation concerns the contextual interpretation of rights laid down in the European Convention

Introduction

On 17 September 2020, the European Court of Human Rights delivered its judgement in the case of Kotilainen and others v. Finland (application no.62439/12). The ECtHR found that Finland had violated the substantive aspect of Article 2 of the European Convention on Human Rights when the local police refrained from seizing a weapon from a person who subsequently committed a school shooting. The Court was satisfied that the national authorities complied with the requirements emanating from the procedural aspect of Article 2. The rest of the applicants’ complaint, which concerned Articles 5, 6 and 13 of the Convention, was declared manifestly ill-founded.

In Kotilainen and others, the Court emphasised the duty of diligence which poses special obligations to national authorities when they are dealing with matters that include a particularly high risk to life. Moreover, the Court concluded that an obligation to uphold the legislation regulating the lawful possession of firearms does not only require, from the national authorities, that they intervene in activities where the risk to life is imminent, but also in activities that cause concrete suspicions about the compliance of requirements regarding the possession of a firearm.

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Positive Obligations in Crisis

Dr Natasa Mavronicola is Reader in Law at Birmingham Law School, University of Birmingham. She has written extensively on the right to life and the right not to be subjected to torture or to inhuman or degrading treatment or punishment. She is co-editor of Lavrysen & Mavronicola (eds), Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR, forthcoming with Hart Publishing (2020).

On the flip side of rights are wrongs. It is now indisputable that the State may wrong us as a matter of human rights law not only by actively mistreating us, but also by failing to protect us from certain harms. The European Court of Human Rights (ECtHR) boasts a formidable jurisprudence on positive obligations borne by States to protect persons within their jurisdiction from grave threats to our life or physical or mental integrity. It is important to understand and apply these appropriately to the current crisis, particularly as positive obligations to protect life are being actively invoked, in the context of the coronavirus pandemic, to justify extensive (coercive) measures across Council of Europe States.

In this short piece, focusing on positive obligations under the European Convention on Human Rights (ECHR), I want to underline the following: (a) the State bears positive obligations to protect, rather than coerce; (b) the State’s positive obligations do not extend to duties to act unlawfully under the Convention; and (c) positive obligations must be responsive to, and entail ancillary obligations to determine, the relevant context and risk. Continue reading