CASE OF A AND B v. CROATIA

1. The case originated in an application (no. 7144/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Croatian nationals, A (the first applicant) and B (the second applicant), on 3 February 2015. The President of the Section acceded to the applicants ’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court).
2. The first applicant was initially represented by Ms I. Bojić and later on by Ms Tanja Vranjican Ðerek, both lawyers practising in Zagreb.
3. Due to the nature of the relationship between the first applicant and the alleged perpetrator and a potential conflict of interest between the applicants, following a request by the Court, the Croatian Bar Association appointed Ms V. Drenški-Lasan, also a lawyer practising in Zagreb, to submit observations on behalf of the second applicant so that her rights and interests are duly presented and taken into account (see §§ 22, 78, 79, 83 and 76 below). The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
4. The applicants alleged that the national authorities had not properly responded to the allegations of sexual abuse of B by her father, and that there had been no effective remedy in that regard.
5. On 23 September 2015 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
6. The first applicant was born in 1984 and the second applicant in 2009.
7. A had a relationship with C and in 2009 their daughter, B, was born. The family lived together at the house of C ’ s parents until January 2014 when A and B moved out. B continued to see C regularly and spend two to three nights a week at the house he shared with his parents.
8. According to A, on an unspecified date in June 2014 B, then four and a half years old, was playing with her genitals in front of A and told her that she had been playing like that with her father, C, every evening before going to bed.
9. On 11 June 2014 A called “the Brave Telephone”, a children ’ s helpline, which advised her to contact the Polyclinic for the Protection of Children in X (hereinafter “the Polyclinic”). On the same evening, A took B to C ’ s house and left her there to spend the night with her father.
10. The following day A called the Polyclinic and scheduled an appointment for B for 20 June 2014. It is unknown which information A gave the Polyclinic at that time.
11. The next day, A and B travelled to another town to visit A ’ s family. According to A, on 14 June 2014 when B was with her maternal aunt, she asked her to “touch [herself] down there” and told the aunt that “daddy has been playing with [her] so as to touch [her] on the genitals with his hands, which [she] told [her] paternal grandparents and [her] grandfather shouted at [her] father”. B also told her aunt that C had been singing a song to her about a bunny. The aunt considered the lyrics of the song as having erotic content.
12. On 16 June 2014 A went to the Y Police Station to report that C had been sexually abusing their child, B, at the time aged four and a half. A was interviewed by a police officer. According to the police report, A said that about two and half years previously she had found her daughter naked from the waist to the knees in a bed with her partner, C, who was asleep. C ’ s face had been close to the child ’ s genitals. A had woken him up and asked him why B was naked. C had replied that she had probably taken her clothes off while he had been asleep. Since there had been no other suspicious signs in B or C ’ s behaviour at the time, A had not taken any action. However, in the spring of 2014, when A, B, and A ’ s sister had been out in public, B had suddenly grabbed a woman she did not know by her genitals. Around then C had been taking care of B most of the time. Also, on 14 June 2014 A had left B with her aunt, A ’ s sister. When A had returned after about an hour, her sister had told her that B had said that C had been “touching [her] down there”, and that she had heard B singing some songs about “a bunny entering a hole”. B had said that she had told her paternal grandparents all this, and that her grandfather had “yelled at daddy not to do things like that anymore ”.
13. According to A, she did not receive any assistance from the police and was only told to contact the Polyclinic, which she had already done (see paragraph 10 above).
14. On the same day the police interviewed D and E, A ’ s siblings. D confirmed A ’ s allegations, and said that she had recorded some of B ’ s behaviour and statements on her mobile telephone. E said that one day mid- June 2014 B had started to behave aggressively towards him, had wanted to kiss him on the mouth and had tried to touch his genitals. He had told D about it.
15. On the same day, C ’ s father reported to the Y Welfare Centre that A had been “emotionally and physically abusing B”, in that she was frequently shouting at B, hitting and insulting her.
16. On 17 June 2014 the police interviewed a paediatrician who had treated B. She said that A had approached her the previous day very upset and had wanted to discuss the possible sexual abuse of B by her father, C. The doctor said that C had been taking care of B most of the time, and that when she had needed medical assistance, he had been the one who had brought B to see her. The doctor described B as a communicative, bright and intelligent child and said that she had not noticed any signs of any kind of abuse.
17. On the same day the police interviewed two teachers in the kindergarten B had been attending. They both described B as a normal, communicative child. Neither of them had noticed any signs of abuse.
18. On the same day A reported the alleged sexual abuse of B by C to the Y Social Welfare Centre (hereinafter “the Centre”). She gave the Centre details on the alleged abuse and informed them that she had already made an appointment at the Polyclinic. A report was drawn up and on the same day forwarded to the Y Police. On 18 June 2014 the Centre contacted the Polyclinic inquiring about the exact date of their appointment with A and B.
19. On 20 June 2014 B was seen by a multidisciplinary team at the Polyclinic. According to A, when she arrived at the Polyclinic she found that C was also there. She was surprised since she had not been informed that he would be present. According to her, both she and C were constantly present during the interviews with B, except for maybe five minutes. According to the Government, the first applicant and C were “processed” at the Polyclinic but were not present during the interviews with B.
20. According to the Government, on 23 June 2014 the Y Police Department requested the Polyclinic to urgently deliver to them its findings concerning B.
21. On 2 July 2014, as instructed by the Polyclinic, B was examined by a gynaecologist. Both her parents were there, but neither of them were present during the examination. No signs of sexual penetration or a fresh or older injury were observed.
22. On 4 July 2014 a multidisciplinary team from the Polyclinic issued a report on B. According to that report, during the assessment B was seen by a social worker, a paediatrician, a psychologist and a psychiatrist. The report does not state the dates she was seen by any of the specialists. The relevant parts of that report read as follows :
“ Assessment and opinion of the social worker
The girl came to the [interview with] the social worker accompanied by her parents ... During the interview with the parents, the girl entered the [interview] room several times. She accepts to stay alone, but on several occasions she exits the room and asks that her mother join her. During the conversation ... she says that “dad touched her [ vagina ] ” and that mum “told her to say that ”, no other information can be obtained ...
Assessment and opinion of the paediatrician
... sexual organ externally female, clean, no irritations or change of colour ... Appointment arranged with ... gynaecologist ... for 30 June 2014.
Assessment and opinion of the psychologist
The girl comes accompanied by her parents ... At this point the girls is separated from her parents and remains alone with the interviewer but several times exits the room checking on her parents, which she also does when parents were in the room while she was outside in the hallway with a companion ... As her reason for coming she says that her mother had told her that her father “had done something bad, was touching her [ vagina ] ”, which is why “her mum is protecting her from her father, so that she does not go close to him”. She provides no further details ...
In conclusion ... [the girl] is growing up in a family with separating parents, she witnesses their broken down relationship, and is exposed to negative attributes of the other parent by the mother, which creates a pressure on the girl ... During the conversation she says that the reason for her coming was inadequate behaviour by the father, but she has difficulties providing details. No signs confirming such behaviour are observed through psychological assessment ...
Assessment and opinion of the psychiatrist
... The girl states that she lives with her mother, that her father used to be very good, but now he is very bad and rude to her, she claims that he “touched her [ vagina ] ”. The girl talks about the father ’ s alleged actions spontaneously, without any discomfort ... Later on, we get the information that her mother told her to say so ...
Psychiatric profile: ... established verbal communication, says she had been sexually abused by the father, but without discomfort or adequate affections ...
Psychiatric assessment does not show signs clearly showing sexual abuse (affectionate inadequacy), but it is not possible to exclude inducement of the girl, which constitutes a risk of emotional abuse.
Opinion of the multidisciplinary team
The girl has been included into the multidisciplinary assessment as instructed by the relevant Centre and police, for suspicions of abuse by the father ...
During the examination, the girl did not show clear signs of being sexually abused. The girl did not describe contextually characteristic situations and her affective response did not correspond to the verbally expressed content. There are elements which indicate pressure by the mother and the possibility of inducement cannot be excluded, which presents a risk of emotional abuse.
The assessment of the father ’ s possible inappropriate behaviour is aggravated by the family climate of fighting, the relationship between the parents, the heteroamnestic information obtained, the different information given by the parents, as well as the mother being overwhelmed by her own experience and mistrust towards the girl ’ s father.
It is recommended that the girl receives supportive supervision over her further development. [It is also recommended] that the parents take part in counselling and that assistance be provided to the family through supervision of parental care to ensure the girl grows up in a safe and stable environment.”
23. On 15 July 2014 C instituted court proceedings against A seeking custody of B.
24. On 6 August 2014 the police sent a special report to the Z State Attorney ’ s Office containing all the interviews are reports gathered by them up to that point.
25. On 11 August 2014 the Y police interviewed C. He denied any sexual abuse of B and alleged that A had been physically punishing her, about which he had lodged a criminal complaint.
26. On the same day, the police requested the Y Welfare Centre to urgently send the family anamnesis and all available information on A and C ’ s family.
27. On 13 August 2014 the Y Municipal Court issued an interim measure allowing A to “exercise all parental rights” over B, owing to the allegations of sexual abuse against C.
28. On the same day, the Centre inquired with the Polyclinic whether B had been included in any supportive follow-up treatments further to her multidisciplinary assessment.
29. On 20 August 2014 the Y police interviewed C ’ s parents, aunt and brother-in-law. The parents had not witnessed any incidents of C sexually abusing B, but both described incidents of A physically abusing B. The aunt and brother-in-law had heard from A about the alleged sexual abuse of B by C, but had not witnessed any incidents of that kind.
30. On 22 August 2014 the Y police confiscated a USB stick from C.
31. On 25 August 2014 A ’ s mother approached the Y police and expressed her concerns about a meeting between B and C ordered by the Y Social Welfare Centre for 28 August 2014. She said that at the mention of the meeting with C, B had thrown herself to the ground and started crying and being aggressive towards her toys, pets and relatives. She also described B ’ s overtly sexual behaviour.
32. On 27 August 2014 the Y Welfare Centre applied a “supervision of parental care” child-protection measure in respect of both A and C.
33. On 2 September 2014 the Y police provided the Z State Attorney ’ s Office with another special report on the actions taken following A ’ s criminal complaint.
34. On 5 September 2014 the Y Welfare Centre sent its report on A, B and C to the Y Municipal Court. It suggested that for the time being care of B be granted to A.
35. On 19 September 2014 the Y Municipal Court awarded custody of B to A and ordered that contact between C and B take place between 4 and 6 p.m. every Tuesday.
36. On 6 October 2014 the Y police interviewed B ’ s babysitter, who described incidents of sexual behaviour by B. On the same day, the police provided the Z State Attorney ’ s Office with another special report on the actions taken following A ’ s criminal complaint.
37. On 10 October 2014 A requested the Z State Attorney ’ s Office to hear further witnesses in the case.
38. On 30 October 2014 the State Attorney ’ s Office ordered that B be seen by a defectologist and that, along with the relevant social welfare centre, the results of the child-protection measure be assessed (see paragraph 32 above) with a view to protecting B ’ s best interest.
39. On 14 November 2014 the State Attorney ’ s Office requested Polyclinic A.B.R., where B was being treated, to submit its assessment on whether B was being abused by either of her parents, with a view to her criminal protection.
40. On 17 November 2014 A submitted to the State Attorney ’ s Office a report dated 10 November 2014 issued by a psychiatrist Z.K, employed with Clinic P, where A had taken B for another assessment. The relevant part of that report reads as follows :
“ ... In the drawing of her family, the father is described as mean and doing things that he should not. She says that the father took her clothes off and pinched her behind and genitals on three occasions, that she told him not to do it, but he had always replied that he did not care. She also says that daddy used to kiss her on the mouth but has stopped doing it. She says that she has not had similar experiences with anyone else. The mother says that the girl behaves in an overtly sexual manner, tries to kiss other people on the mouth (her nannies, mother and uncle). The mother says that the girl wants to touch other people on the behind, inserts her fingers in her underwear and then into other people ’ s mouths and that she had inserted her finger into her cat ’ s rectum. The girl denies remembering any of this.
During examination the girl attempted to make inappropriate contact with the doctor writing the report. She stopped playing with toys and approached him from behind, tried to hold his upper arm and leant her head against it. This behaviour is regarded as inappropriate in the current situation.
It is advised that the girl continue psychotherapeutic counselling currently being performed at ... Polyclinic A.B.R. Given the overall context and ongoing court proceedings, I recommend issuance of regular documents, cooperation with both parents as seen fit by the psychotherapist in charge of the child. In order to determine the forensic issues, in light of the complicated status of the girl and the overall circumstances of the ‘ case ’, it would be necessary to obtain an expert opinion, which could sufficiently determine the psychiatric and psychological characteristics of both parents and their causal link with the behaviour of the child or possible manipulation of the child. There is no professional need for ... double psychotherapy by two psychotherapists ... ”
41. On 17 November 2014 A ’ s lawyer asked the Z State Attorney ’ s Office to commission a forensic expert report on B.
42. In reply to the State Attorney ’ s Office letter of 14 November 2014, on 3 December 2014 the A.B.R. Polyclinic submitted its psychological assessment and opinion dated 1 December 2014 and drawn up by psychologist Z.G. The relevant part of that report, reads as follows :
“1. The child expresses a lack of distance and erotic closeness with people she does not know. On the basis of her playing and drawings and the information given by both parents, it could be concluded that the child expresses a premature interest in sexuality which is repeated constantly, so it cannot be seen as behaviour appropriate for [the child ’ s] age, but as behaviour which indicates [the existence of] trauma.
2. It is clear that the child is emotionally and socially neglected because of the severe conflict between the parents over a longer period. The neglect is so severe that both parents are responsible for it. It is difficult to tell to what extent and in what way such a parental approach has contributed to the observed behaviour of the child, that is to say her premature and intense interest in sexuality and her sexual behaviour.
3. I therefore consider that the child, apart from being educationally and emotionally neglected, has also been exposed to inappropriate content and/or conduct by an adult with sexual connotations.
4. At the time of examination the child was not testable, so the projective techniques which could better explain the parents ’ influence on the observed behaviour could not have been applied.
5. Before deciding which parent is better placed to have custody of the child, an assessment of [their] capability should be carried out.
6. The child should certainly [receive] intensive treatment so as to diminish or remove the obstacles from the emotional and social sphere.”
43. On the same day a senior expert consultant of the Z State Attorney ’ s Office issued a report on the applicants ’ case, the relevant part of which reads as follows:
“ ... on her mother ’ s initiative, the girl has been examined at various psychological and psychiatric institutions, so one gets the impression that the mother visits various experts and institutions in order to support her accusations and when she does not obtain confirmation of her accusations, she goes to another institution. The girl has hence been treated by the Social Welfare Centre, the Polyclinic, Clinic P and is now treated in Polyclinic A.B.R.
It transpires from the examinations and opinions of all institutions that the girl behaves in an inappropriately sexualised manner, but they do not establish that such behaviour would be due to sexual abuse by the father. The Polyclinic established that there had been no signs clearly indicating a sexual trauma because the girl did not describe contextually characteristic situations and her affectionate [behaviour] is not in line with verbally described content. On the other hand, [the Polyclinic] did note elements indicating the mother ’ s pressure due to which inducement of the girl could not be excluded, which is a form of emotional abuse.
Generally it can be concluded that the relationship between former spouses is very disturbed and that the child was left to nannies and has not bonded with either of the parents. Although the child shows erotic behaviour inappropriate for her age, her inducement by the mother is so obvious as well as her taking of the child to various institutions and psychiatrists, that no credibility can any longer be given to the child ’ s statements. Through her behaviour, the mother is pushing the girl even more to regression and emotional trauma, and although she has been warned about this, she ignores the experts. One gets the impression that she contacts institutions until she receives confirmation for her accusations. When experts point out her failures, she becomes verbally aggressive. On the other hand, the father distances himself, he is anxious and depressed and actually participates in the education only passively, sets no boundaries for the girl who has no distance in respect of him and acts appropriately considering her age in a given situation.
To sum up, the behaviour of both parents and their severely disturbed relationship and conflicts which break down on the girl and continue through institutions, severely endanger the child ’ s further emotional, cognitive and social development, and regression is observed already at this stage and is continuing negatively. I consider both parents responsible for such a state of the girl. I consider that both parents should be included in psychotherapy, which has already been suggested to them, but neither of them has thus far joined any expert treatment nor has asked for help; what is important is that the girl is being taken to various experts, from institution to institution so that she already feels at home there and adapts her behaviour, so no credible statement can any longer be obtained from her.
44. On 31 December 2014 the Z State Attorney ’ s Office informed A and her lawyer that the case had been closed. The relevant part of the letter sent to them reads:
“ ... after careful assessment of the ... documentation ..., even though it has been concluded with certainty that child B shows erotic behaviour inappropriate for her age, no facts or circumstances have been established which would clearly indicate that the cause of this behaviour is sexual abuse of child B by the suspect C.
Since in this case reasonable suspicion has not been established that C has sexually abused child B, or that his behaviour amounted to any other criminal act liable to State-assisted prosecution, there is therefore no basis for the State Attorney ’ s Office to process [the case] further.”
45. On 30 January 2015 the Z State Attorney ’ s Office issued a formal decision not to prosecute. The decision describes in detail all the evidence gathered. The relevant part of its conclusion reads:
“On the basis of the allegations contained in the criminal complaint, the documentation obtained during the enquiry and [that] submitted by the complainant ... it has been established that there were no signs of either old or fresh injuries on child B ’ s body and genitals ... that child B shows a premature interest in sexuality and erotic behaviour inappropriate for her age, and that both parents should receive appropriate [ psychotherapy]. The fact that child B shows a premature interest in sexuality and erotic behaviour inappropriate for her age has been established in interviews with complainant A, [the child ’ s maternal grandmother, A ’ s siblings] D and E, and by the opinions given by experts of various institutions ... However, even though the A.B.R. Polyclinic ’ s report ... shows that the child was exposed to inappropriate content and/or conduct by an adult with sexual connotations, the fact is that none of the four institutions which had previously treated the child, including the A.B.R. Polyclinic, has established that the cause of this erotic behaviour ... is sexual abuse by her father C. The report by the Polyclinic ’ s multidisciplinary team ... indicates that there are no clear signs of sexual abuse. On the other hand, elements showing pressure by the mother were present. This could not exclude the possibility of the girl ’ s inducement ... which represents emotional abuse. Furthermore, elements of pressure by the mother on the child were observed by other experts ... It has been established that the conduct of the mother, who is well informed about the manner in which sexually abused children are treated and monitored, led the child to give statements which were often contradictory or untrue, which is why it is no longer possible to obtain a truthful statement from the child.”
The decision then concludes that, taking into account all the facts and circumstances, it was not possible to conclude that C had committed any criminal offence liable to State-assisted prosecution. A was also informed that she could lodge a request for an investigation with a competent county court ’ s investigating judge within eight days.
46. A complied with the instruction on 26 February 2015 by submitting a request to an investigating judge of the Z County Court seeking an investigation into the allegations of sexual abuse of B by her father.
47. A also lodged a constitutional complaint against the decision of the Z State Attorney ’ s Office of 30 January 2015. It was declared inadmissible by the Constitutional Court on 28 April 2015 on the ground that the impugned decision did not amount to an act by which “a competent court has decided on the merits about a right or an obligation of the applicant or a criminal charge against her ”.
48. On 30 October 2015 an investigation judge of the Z County Court dismissed A ’ s request for an investigation (see paragraph 46 above) on the grounds that the requirement of a reasonable suspicion against C had not been met. A ’ s appeal against that decision was dismissed by a three-judge panel of the same court on 8 December 2015.
49. On 27 August 2014 the Centre ordered three measures to protect the rights of B : supervision of parental care of both parents, supervision of personal contact between B and C and providing expert assistance and support with parental care.
50. The measure of supervision of parental care was implemented in respect of both parents for the period 30 August 2014 to 29 February 2016. A psychologist was assigned to observe the manner in which parental care was carried out and she gave expert advice to the parents on how to minimise the tension between them. Monthly reports were submitted to the Centre.
51. The measure of supervision of personal contact between B and C was implemented on 2 September 2016. The supervisor assigned submits monthly reports to the Centre.
52. The measure of expert assistance was implemented in respect of both parents on 30 September 2016. A pedagogical expert was appointed to assist A with her parental care of B.
53. The documents submitted by the parties show the following.
54. B continues to be seen by a psychiatrist.
55. On 28 August 2014 a meeting was held at the Centre with a psychologist to inform the parents about the measure of supervision of parental care. It was agreed that the psychologist would see the mother once every two weeks and that the father would also see B every second week in the presence of the psychologist. Reports of the psychologist show that these meetings have been held regularly.
56. The psychologist also made contact with and consulted the psychiatrist treating B, the relevant professionals from the kindergarten and school attended by B and the psychologist treating C.
57. On 13 August 2014 the Z Municipal Court ordered contact between B and C every Tuesday afternoon for two hours, under the supervision of a social worker. It appears that this order has been complied with.
58. A attended counselling for single parents on her own initiative.
59. Detailed reports were submitted to the Centre after every meeting with each of the parents, on contact between B and C and members of his family and on meetings with B. The reports show that B and C have a good relationship and that A insists on not communicating with C.
60. Several sets of proceedings concerning the custody of B and contact rights of C were pending before the national authorities at the material time.
61. On 7 May 2018 a municipal court awarded C custody of B, finding it in the child ’ s best interest to live with her father.
62. Sexual abuse of a child under fifteen years of age (Article 158), satisfaction of lust in front of a child (Article 160) and the introduction of children to pornography (Article 164) are all offences under the Criminal Code ( Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012).
63. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette no. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013 and 145/2013 ) at the material time provided as follows :
“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.
(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”
“(1) A child victim of a criminal offence ... has the right to :
1. a representative paid by the State; ...
2. be accompanied by a person of his or her trust when participating in measures [taken by the authorities];
3. confidentiality of personal data;
4. exclusion of the public [from proceedings]
“(1) [ A criminal] report shall be filed with the relevant State Attorney in writing, orally or by other means.
(3) If the report was filed with the court, the police authority or a State Attorney lacking jurisdiction, they shall receive it and immediately forward it to the State Attorney having jurisdiction ... ”
“(2) The police shall notify the State Attorney about all inquiries into criminal offences immediately, and not later than 24 hours from the moment the action was conducted ...
(4) On the basis of conducted inquiries, the police shall ... compose a criminal complaint or a report about the conducted inquiries, stating all the evidence which it gathered ...
(5) Should the police subsequently learn about new facts [or] evidence ... it shall collect the necessary information and inform the State Attorney about it immediately ... ”
“(1) The following persons are not obliged to give evidence as witnesses:
4. a child who, owing to his or her age and emotional development, is unable to understand the meaning of the right not to give evidence as a witness cannot be heard as a witness, but the information obtained from him or her through experts, relatives or other persons who have been in contact with the child may serve as evidence.
C. Act on Protection from Domestic Violence
64. Section 4 of the Act on Protection from Domestic Violence ( Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 116/2003 ), defines domestic violence as follows:
“ ... every use of physical force or psychological pressure against the integrity of a person; every other behaviour of a family member which can cause or potentially cause physical or psychological pain; causing feelings of fear or being personally endangered or feeling of offended dignity; physical attack regardless of whether or not it results in physical injury, verbal assaults, insults, cursing, name-calling and other forms of severe disturbance, sexual harassment; spying and all other forms of disturbing; illegal isolation or restriction of the freedom of movement or communication with third persons; damage or destruction of property or attempts to do so. ”
65. The relevant provisions of the Family Act ( Obiteljski zakon, Official Gazette no. 103/2015) provide:
“(1) Parents have a duty and responsibility to protect the rights and welfare of their child.
(2) In the cases prescribed by this Act other family members also have the duty and responsibility referred to in paragraph 1 of this section.
(3) Measures to protect the rights and welfare of a child are applied in respect of the parents.
(4) Measures which may be taken by a social welfare centre to protect the rights and welfare of a child may also be applied in respect of persons who care for a child on a daily basis.”
“ When determining the appropriate measure to protect the rights and welfare of a child, the body conducting the procedure shall ensure that a measure is applied which restricts as little as possible a parent ’ s right to care for the child where it is possible to protect the rights and welfare of the child by such a measure.”
“ Measures to protect the rights and welfare of a child shall be ordered on the basis of an expert assessment if it has been established that there has been an infringement of the child ’ s rights or welfare or that the child ’ s rights or welfare are at risk.”
“A social welfare centre may apply [the following measures] to protect the rights and welfare of a child:
1. An urgent measure placing the child outside his or her family;
2. A warning about the errors and failures in exercising parental care;
3. A measure of expert assistance and support with parental care;
4. A measure of intensive expert assistance and supervision of parental care.”
E. National Strategy for the Rights of Children in the Republic of Croatia
66. The National Strategy for the Rights of Children in the Republic of Croatia for the period 2014 to 2020 ( Nacionalna strategija za prava djece u Republici Hrvatskoj ) was adopted in September 2014 by the Croatian Government. Four main aims were identified: ensuring that services in various areas were adapted to children (such as justice, health care, social welfare, education, sport and culture ), eliminating all forms of violence against children, ensuring that the rights of children in vulnerable situations are respected and ensuring the active participation of children.
F. Protocol on Conduct in Domestic Violence Cases
67. The Protocol on Procedures in Domestic Violence Cases ( Protokol o postupanju u slučaju nasilja u obitelji – hereinafter “Protocol 1 ”) was issued in 2008 by the Ministry of Family, Homeland War Veterans and Intergenerational Solidarity. It relies on the definition of domestic violence, as stated in the Act on Protection against Domestic Violence Act ( see paragraph 64 above ).
68. As regards the duties of the police, Protocol 1 provides that when the police receive information in any way and from anyone about an instance of domestic violence, an officer must interview the victim in separate premises without the alleged perpetrator being present. If the victim or witness of domestic violence is a child, specially trained officers must carry out all tasks.
69. As regards the duties of social welfare centres, Protocol 1 provides that such centres are obliged to provide help to the victims of domestic violence in obtaining legal aid, encourage the victim to seek appropriate counselling, and assess whether the best interests of a child victim of domestic violence require that a special guardian be appointed so that his or her rights are completely protected in criminal or minor offences proceedings.
G. Protocol on Conduct in Cases of Sexual Violence
70. The Protocol on Conduct in Cases of Sexual Violence ( Protokol o postupanju u slučaju seksualnog nasilja – hereinafter “Protocol 2” ) was adopted by the Croatian Government on 4 September 2014. It provides that all actions by the police, save for urgent measures, are to be carried out by officers specially trained in sexual violence cases and that the police must inform the victim of the possibility of obtaining expert help for the protection of his or her physical and psychological well-being. The police are obliged to immediately inform a State attorney ’ s office of the information gathered.
71. As regards the duties of social welfare centres, Protocol 2 provides that centres are obliged to provide victims with help in obtaining legal aid, as well as counselling and psychosocial support.
H. Protocol on Conduct in Cases of Ill-treatment and Neglect of Children
72. The Protocol on Conduct in Cases of Ill-treatment and Neglect of Children ( Protokol o postupanju u slučaju zlostavljanja i zanemarivanja djece – hereinafter “Protocol 3” ) was adopted by the Croatian Government in November 2014.
73. Protocol 3 provides that the best interests of a child have primary importance in all matters covered by it. The procedures followed should be efficient in order to ensure that the child is given prompt and co-ordinated protection from further ill-treatment, including sexual abuse, or neglect, as well as provided appropriate support. All procedures conducted by State bodies are to be carried out by experts in the relevant fields.
74. A social welfare centre should appoint a special guardian for the child if its experts assess that his or her interests are in conflict with those of the parent. It should also instruct the parent to seek counselling or involve the child in appropriate forms of psychosocial help, rehabilitation programmes and other forms or expert help and support. The social welfare centre is also obliged to provide information to the parent about any pending procedures, activities planned and their possible consequences and the rights of the child. It must also co-operate with other bodies and institutions involved and organise consultation meetings so as to ensure a coordinated approach in order to provide the child with appropriate help, support and treatment with the aim of protecting him or her from further trauma, and to prevent repeated interviews or examinations.
75. Medical institutions are obliged to ensure cooperation through a multi-disciplinary team approach in order to avoid repetition of the traumatic experience.
76. Directive of the European Parliament and of the Council (2012/29/EU) of 25 October 2012 establishes minimum standards on the rights, support and protection of victims of crime. The relevant part of the Directive, which was to be implemented into the national laws of the European Union Member States by 16 November 2015, provides as follows:
“2. Member States shall ensure that in the application of this Directive, where the victim is a child, the child ’ s best interests shall be a primary consideration and shall be assessed on an individual basis. A child-sensitive approach, taking due account of the child ’ s age, maturity, views, needs and concerns, shall prevail. The child and the holder of parental responsibility or other legal representative, if any, shall be informed of any measures or rights specifically focused on the child.”
“A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them ...”
Article 20 – Right to protection of victims during criminal investigations
“Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations:
(a) interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority;
(b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation;
(d) medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.”
Article 22 Individual assessment of victims to identify specific protection needs
“4. For the purposes of this Directive, child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. To determine whether and to what extent they would benefit from special measures as provided for under Articles 23 and 24, child victims shall be subject to an individual assessment as provided for in paragraph 1 of this Article.”
Article 24 Right to protection of child victims during criminal proceedings
“1. In addition to the measures provided for in Article 23, Member States shall ensure that where the victim is a child:
(a) in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings;
(b) in criminal investigations and proceedings, in accordance with the role of victims in the relevant criminal justice system, competent authorities appoint a special representative for child victims where, according to national law, the holders of parental responsibility are precluded from representing the child victim as a result of a conflict of interest between them and the child victim, or where the child victim is unaccompanied or separated from the family;
(c) where the child victim has the right to a lawyer, he or she has the right to legal advice and representation, in his or her own name, in proceedings where there is, or there could be, a conflict of interest between the child victim and the holders of parental responsibility.
The procedural rules for the audiovisual recordings referred to in point (a) of the first subparagraph and the use thereof shall be determined by national law.”
77. The relevant provisions of the Convention on the Rights of the Child, which came into force on 2 September 1990, read as follows:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials. ”
1. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse
78. This Convention obliges its parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conduct. It was adopted in Lanzarote on 25 October 2007 and entered into force on 1 July 2010. As regards Croatia, it was ratified on 21 September 2011 and came into force on 1 January 2012. The relevant parts read:
“Each Party shall take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to protect children.”
Article 14 – Assistance to victims
“1. Each Party shall take the necessary legislative or other measures to assist victims, in the short and long term, in their physical and psycho-social recovery. Measures taken pursuant to this paragraph shall take due account of the child ’ s views, needs and concerns.
4. Each Party shall take the necessary legislative or other measures to ensure that the persons who are close to the victim may benefit, where appropriate, from therapeutic assistance, notably emergency psychological care.”
Chapter VI – Substantive criminal lawArticle 18 – Sexual abuse
“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:
a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;
Chapter VII – Investigation, prosecution and procedural lawArticle 30 – Principles
“1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child.
2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate.
3. Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay.
Article 31 – General measures of protection
“ 1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:
a. informing them of their rights and the services at their disposal and, unless they do not wish to receive such information, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases;
d. providing them with appropriate support services so that their rights and interests are duly presented and taken into account;
g. ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, unless the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact.
4. Each Party shall provide for the possibility for the judicial authorities to appoint a special representative for the victim when, by internal law, he or she may have the status of a party to the criminal proceedings and where the holders of parental responsibility are precluded from representing the child in such proceedings as a result of a conflict of interest between them and the victim.
“1. Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. Such units or services shall have adequate financial resources.
Article 35 – Interviews with the child
“1. Each Party shall take the necessary legislative or other measures to ensure that:
a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;
b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose;
c. interviews with the child are carried out by professionals trained for this purpose;
d. the same persons, if possible and where appropriate, conduct all interviews with the child;
e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings;
f. the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.
2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law.
79. The relevant part of the Explanatory Report to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse reads as follows:
Article 31 – General measures of protection
227. Paragraph 4 makes provision for the situation in cases of sexual abuse within the family, in which the holders of parental responsibility, while responsible for defending the child ’ s interests, are involved in some way in the proceedings in which the child is a victim (where there is a “conflict of interest”). In such cases, this provision makes it possible for the child to be represented in judicial proceedings by a special representative appointed by the judicial authorities. This may be the case when, for example, the holders of parental responsibility are the perpetrators or joint perpetrators of the offence, or the nature of their relationship with the perpetrator is such that they cannot be expected to defend the interests of the child victim with impartiality.
Article 35 – Interviews with the child
“ 236. This provision concerns interviews with the child both during investigations and during trial proceedings. ... The main purpose of the provision is the same as that described more generally in connection with Article 30: to safeguard the interests of the child and ensure that he or she is not further traumatised by the interviews. ...
237. In order to achieve these objectives, Article 35 lays down a set of rules designed to limit the number of successive interviews with children, which force them to relive the events they have suffered, and enable them to be interviewed by the same people, who have been trained for the purpose, in suitable premises and a setting that is reassuring ...
238. Paragraph 2, provides that interviews with a child victim or, where appropriate, those with a child witness, may be videotaped for use as evidence during the criminal proceedings. The main objective of this provision is to protect children against the risk of being further traumatised. The videotaped interview can serve multiple purposes, including medical examination and therapeutic services, thus facilitating the aim of limiting the number of interviews as far as possible. It reflects practices successfully developed over the last few years in numerous countries.
80. Committee of the Parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse (Lanzarote Committee) adopted a 1 st implementation report on the protection of children on sexual abuse in the circle of trust on 4 December 2015. The relevant parts of that report read as follows:
“ III. BEST INTEREST OF THE CHILD AND CHILD FRIENDLY CRIMINAL PROCEEDINGS
77. Child sexual abuse is typically a very intimate and secretive act ... A child ’ s ability and willingness to report their victimisation plays a crucial role in legal and therapeutic intervention. It represents the most valuable source of information and it is on this that the whole case may rest.
78. In this respect it is crucial to avoid the negative consequences which result from inappropriate and repetitive interviewing techniques and adverse facilities where these interviews may take place. To guarantee the rights and best interests of child victims of sexual abuse, authorities need to recognize that they have to act collectively, not just as a government or a judicial system, but all together as a society. Acting collectively means implementing measures to protect children, which are not confined to individual actions ... but which are truly child-focused and comprehensive with regard to prevention, intervention and rehabilitation. An interdisciplinary and multi-agency approach delivered by all the different entities in society whose responsibility is to carry out these tasks is therefore paramount.
III.5 Article 31 § 4: Appointment by the judicial authorities of a special representative for the victim to avoid a conflict of interest between the holders of parental responsibility and the victim
125. Considering that the level of family support is one of the most important predictors of the degree to which the child can adjust following his or her disclosure, family support can be heavily disrupted when the alleged perpetrator is part of the child ’ s family environment. In Belgium and Croatia the non-offending parent will often be appointed as special representative if this is in the child ’ s best interest. However, although this option can provide valuable emotional support for the child ’ s future wellbeing, it may also create a conflict of interests with the child, especially if the non-offending parent is involved emotionally.
2. Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence
81. The Convention was adopted in Istanbul on 11 May 2011 and entered into force on 1 August 2014. It was signed by Croatia on 22 January 2013, ratified on 1 2 June 201 8 and came into force on 1 October 2018. The relevant part reads:
Chapter IV – Protection and supportArticle 18 – General obligations
“1. Parties shall take the necessary legislative or other measures to protect all victims from any further acts of violence.
2. Parties shall take the necessary legislative or other measures, in accordance with internal law, to ensure that there are appropriate mechanisms to provide for effective co ‐ operation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities as well as non ‐ governmental organisations and other relevant organisations and entities, in protecting and supporting victims and witnesses of all forms of violence covered by the scope of this Convention, including by referring to general and specialist support services as detailed in Articles 20 and 22 of this Convention.
3. Parties shall ensure that measures taken pursuant to this chapter shall:
– be based on a gendered understanding of violence against women and domestic violence and shall focus on the human rights and safety of the victim;
– be based on an integrated approach which takes into account the relationship between victims, perpetrators, children and their wider social environment;
– aim at avoiding secondary victimisation;
– allow, where appropriate, for a range of protection and support services to be located on the same premises;
– address the specific needs of vulnerable persons, including child victims, and be made available to them.
4. The provision of services shall not depend on the victim ’ s willingness to press charges or testify against any perpetrator.
5. Parties shall take the appropriate measures to provide consular and other protection and support to their nationals and other victims entitled to such protection in accordance with their obligations under international law.”
“Parties shall take the necessary legislative or other measures to ensure that victims receive adequate and timely information on available support services and legal measures in a language they understand.”
Chapter VI – Investigation, prosecution, procedural law and protective measuresArticle 49 – General obligations
“1. Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.
Article 50 – Immediate response, prevention and protection
“1. Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence covered by the scope of this Convention promptly and appropriately by offering adequate and immediate protection to victims.
Article 56 – Measures of protection
2. A child victim and child witness of violence against women and domestic violence shall be afforded, where appropriate, special protection measures taking into account the best interests of the child.”
3. Recommendation of the Committee of Ministers on assistance to crime victims
82. The relevant part of the Recommendation Rec (2006) 8 of the Committee of Ministers to member States on assistance to crime victims, adopted by the Committee of Ministers on 14 June 2006 at the 967 th meeting of the Ministers ’ Deputies, reads as follows:
“1.3. Secondary victimisation means victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim.”
“2.1. States should ensure the effective recognition of, and respect for, the rights of victims with regard to their human rights; they should, in particular, respect the security, dignity, private and family life of victims and recognise the negative effects of crime on victims.
2.3. The granting of these services and measures should not depend on the identification, arrest, prosecution or conviction of the perpetrator of the criminal act.”
“3.3. Victims should be protected as far as possible from secondary victimisation.
3.4. States should ensure that victims who are particularly vulnerable, either through their personal characteristics or through the circumstances of the crime, can benefit from special measures best suited to their situation.”
10. ProtectionProtection of physical and psychological integrity
“10.1. States should ensure, at all stages of the procedure, the protection of the victim ’ s physical and psychological integrity. Particular protection may be necessary for victims who could be required to provide testimony.
10.2. Specific protection measures should be taken for victims at risk of intimidation, reprisals or repeat victimisation.”
14. Co-ordination and co-operation
“14.1. Each state should develop and maintain co-ordinated strategies to promote and protect the rights and interests of victims.
14.2. To this end, each state should ensure, both nationally and locally, that:
– all agencies involved in criminal justice, social provision and health care, in the statutory, private and voluntary sectors, work together to ensure a co-ordinated response to victims;
83. Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice were adopted by the Committee of Ministers on 17 November 2010. The relevant part reads :
“ B. Best interests of the child
1. Member states should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them.
2. In assessing the best interests of the involved or affected children:
a. their views and opinions should be given due weight;
b. all other rights of the child, such as the right to dignity, liberty and equal treatment should be respected at all times;
c. a comprehensive approach should be adopted by all relevant authorities so as to take due account of all interests at stake, including psychological and physical well-being and legal, social and economic interests of the child.
3. The best interests of all children involved in the same procedure or case should be separately assessed and balanced with a view to reconciling possible conflicting interests of the children.
4. While the judicial authorities have the ultimate competence and responsibility for making the final decisions, member states should make, where necessary, concerted efforts to establish multidisciplinary approaches with the objective of assessing the best interests of children in procedures involving them.
1. Children should be treated with care, sensitivity, fairness and respect throughout any procedure or case, with special attention for their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity. This treatment should be given to them, in whichever way they have come into contact with judicial or non-judicial proceedings or other interventions, and regardless of their legal status and capacity in any procedure or case.
2. Children shall not be subjected to torture or inhuman or degrading treatment or punishment.
2. Legal counsel and representation
37. Children should have the right to their own legal counsel and representation, in their own name, in proceedings where there is, or could be, a conflict of interest between the child and the parents or other involved parties.
42. In cases where there are conflicting interests between parents and children, the competent authority should appoint either a guardian ad litem or another independent representative to represent the views and interests of the child.
43. Adequate representation and the right to be represented independently from the parents should be guaranteed, especially in proceedings where the parents, members of the family or caregivers are the alleged offenders.
6. Evidence/statements by children
68. Direct contact, confrontation or interaction between a child victim or witness with alleged perpetrators should, as far as possible, be avoided unless at the request of the child victim.
69. Children should have the opportunity to give evidence in criminal cases without the presence of the alleged perpetrator.
V. Promoting other child-friendly actions
Member states are encouraged to:
j. set up child-friendly, multi-agency and interdisciplinary centres for child victims and witnesses where children could be interviewed and medically examined for forensic purposes, comprehensively assessed and receive all relevant therapeutic services from appropriate professionals;
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION AS REGARDS THE ALLEGATIONS OF SEXUAL ABUSE OF B
84. A complained on behalf of B that the domestic authorities had failed to provide a proper response to the allegations of sexual abuse of B by her father, and that they had had no effective remedy in that regard. They relied on Articles 3, 8 and 13 of the Convention.
85. The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint under Articles 3 and 8 of the Convention. The relevant parts read:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“Everyone has the right to respect for his private and family life ...”
86. The Government argued that the complaints under Articles 3 and 8 were premature since two sets of civil proceedings at national level, both concerning the custody of B, were still pending at the material time.
87. The applicants objected, arguing that these proceedings had no bearing on the State ’ s obligations under Articles 3 and 8 of the Convention.
(a) As regards A ’ s victim status
88. Even though the Government did not raise objections concerning A ’ s victim status, that issue is a matter which goes to the Court ’ s jurisdiction, which the Court thus must examine of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 60, ECHR 2016 (extracts)).
89. The Court reiterates that in order to be able to lodge a petition in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ... ”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Micallef v. Malta [GC], no. 17056/06, § 44, ECHR 2009). This criterion is not to be applied in a rigid, mechanical and inflexible way (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX).
90. In the present case, the applicants alleged that the response of the national authorities to the allegations of sexual abuse of B by her father had not been in compliance with the State ’ s obligations under Articles 3 and 8 of the Convention. This complaint concerns B only. A was only a representative of B in the proceedings before the national authorities. In the present case, the Court does not find any particular circumstances that would justify accepting the victim status of the mother as well.
91. Accordingly, this complaint, in so far as it concerns A, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.
(b) Whether the application is premature
92. The Court reiterates that the alleged breaches of Articles 3 and 8 of the Convention concern the inadequate response of the national authorities to the allegations of sexual abuse of a child. The Court has held that in such circumstances it falls upon the member States to ensure that efficient criminal-law provisions are in place (see, for example, M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII ). The protection afforded by civil and custody proceedings is insufficient (see X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91). Therefore, the fact that the civil and custody proceedings referred to by the Government were pending at the material time (see paragraph 86 above) does not have as a consequence that the application is premature.
( c ) Conclusion as to the admissibility
93. The Court notes that these complaints in so far as they concern B (hereinafter “the applicant”) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
94. The applicant contended that the criminal - law mechanisms existing in Croatia as regards allegations of sexual abuse of children were ineffective.
95. She considered that the national authorities should have carried out investigations into the following three issues – whether she had been sexually abused by her father; whether she had been sexually abused by someone else; and whether she had been emotionally abused by her mother.
96. As regards the investigation into the alleged sexual abuse of the applicant by her father, the authorities had not acted promptly. Thus, after A had reported the sexual abuse of the applicant to the police, the latter had not been taken to a gynaecologist within seventy -two hours. No forensic expert interview was ever done in order to clarify the facts of the case (see paragraph 41 above). The psychological and psychiatric assessment of the father, C, had not been carried out properly in a specialised facility.
97. Further to this, the authorities had not efficiently investigated whether the applicant had been emotionally abused and manipulated by her mother.
98. The authorities had not once investigated the possibility that the applicant had been sexually abused by someone else, even though such a possibility had been suggested by a psychologist (see paragraph 42 above).
99. The authorities in charge had not considered appointing a special guardian for the applicant during the proceedings at issue, even though it had been obvious that neither A nor C had been capable of protecting her best interests. In these circumstances only a special guardian could have ensured that her best interests were in reality protected.
100. Furthermore, at the time when the expert reports had indicated that A might have influenced and manipulated the applicant, the relevant social welfare centre failed to remove the applicant from her parents. The centre had not done anything to prevent A from constantly changing the doctors and psychologists treating the applicant, which had amounted to her secondary victimisation.
101. The Government, relying extensively on the details of the facts of the case, argued that the authorities had carried out all the necessary steps in order to establish the circumstances of the alleged sexual abuse of the applicant by her father. As regards the alleged lack of promptness in the initial stages of the investigation, the Government pointed out that the requirement of a medical examination with a seventy-two hour period relied on by the applicant had started to run from the moment of the alleged sexual contact. Since A had informed the police and the social welfare centre about the alleged sexual abuse only several days after the applicant had last seen C, that 72-hour period had already elapsed.
102. As regards the examination of B carried out by the team of experts at the Polyclinic, which started only four days after the alleged sexual abuse had been reported, the Government maintained that that team had been comprised of experts specially trained for that type of interview. The applicant had been seen by four members of that team, including a paediatrician. A and C had also been seen by the members of the team but had not been present during the interviews with the applicant.
103. The Government stressed that all the procedures had been carried out by experienced professionals and experts in the relevant fields and that those procedures had been of a nature appropriate to the applicant ’ s age. As regards a forensic interview, the Government submitted that, given the applicant ’ s young age, such interviewing techniques could to a large extent not have been applied to her at the material time.
104. In parallel, starting the very next day after the alleged abuse had been brought to their attention, the competent authorities interviewed all persons who might have had any knowledge of the events. During the ensuing investigation all relevant evidence had been gathered and properly assessed. The fact that the authorities had decided not to prosecute could not be seen as arbitrary or a result of any failure on their part.
105. The Court is called upon to examine the adequacy of the legal framework governing the conduct of the authorities in investigating and processing cases of sexual abuse of children. It is also called upon to examine whether in the criminal proceedings concerning alleged sexual battery by the father against the applicant, who at the time was four and a half years old, the competent authorities had carried out a thorough, effective and prompt investigation as well as whether they had afforded sufficient protection to the applicant ’ s right to respect for private life, and especially for her personal integrity in light of her vulnerability due to her young age and alleged sexual abuse and taking the best interests of the child as a primary consideration. Thus, in issue is not only the effectiveness of investigation, but the alleged lack or inadequacy of measures aimed at protecting in criminal proceedings the rights of a child, who had allegedly been the victim of sexual abuse ( compare Y. v. Slovenia, no. 41107/10, § 101, ECHR 2015 (extracts)).
106. Given the nature and substance of the applicant ’ s complaints, they fall to be examined under Articles 3 and 8 of the Convention, both of which entail an obligation on the State to safeguard the physical and psychological integrity of a person (see X and Y v. the Netherlands, cited above, §§ 22-23; M. and C. v. Romania, no. 29032/04, §§ 107-11, 27 September 2011; M.P. and Others v. Bulgaria, no. 22457/08, §§ 108-10, 15 November 2011; and Okkalı v. Turkey, no. 52067/99, § 54, ECHR 2006 XII (extracts)). Children and other vulnerable individuals, in particular, are entitled to effective protection (see O ’ Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts); X and Y v. the Netherlands, cited above, §§ 23-24 and 27, and M.C. v. Bulgaria, cited above, § 150).
107. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 of the Convention and in other instances under Article 8 taken alone or in combination with Article 3 – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Söderman v. Sweden [GC], no. 5786/08, § 80, ECHR 2013 with further references).
108. Positive obligations of the states under Article 3 and 8 of the Convention also include requirements related to the effectiveness of the investigation (see M.C. v. Bulgaria, cited above, § § 150-152 and, as regards general principles, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § § 233-238, 30 March 2016; Bouyid v. Belgium [GC], no. 23380/09, § § 114-123, ECHR 2015; and Tadić v. Croatia, no. 10633/15, § 66, 23 November 2017 ). The Court has held that an effective investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence. The investigation ’ s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. A requirement of promptness and reasonable expedition is an important factor. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case. Moreover, notwithstanding its subsidiary role in assessing evidence, the Court reiterates that where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Y. v. Slovenia, cited above, § 96).
109. The Court has also accepted that positive obligations under Articles 3 and 8 include the protection of the rights of victims in criminal proceedings (see Y. v. Slovenia, cited above, § § 97 and 101).
110. Thus regarding, more specifically, serious acts such as rape and other forms of sexual abuse of children, including sexual battery, where fundamental values and essential aspects of private life are at stake, it falls upon the member States to ensure that criminal-law provisions for the effective punishment of sexual abuse of children are in place and that they are applied in practice through effective investigation and prosecution (ibid., § 82, and M.C. v. Bulgaria, cited above, § 153). Yet, there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable ( see Söderman, cited above, § 83 with further references).
111. The Court reiterates that in cases of sexual abuse children are particularly vulnerable (see M.C. v. Bulgaria, cited above, §§ 150 and 183; M.G.C. v. Romania, no. 61495/11, § 56, 15 March 2016). The Court also recalls that the right to human dignity and psychological integrity requires particular attention where a child is the victim of violence (see C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012; see also paragraph 78 above). The Court recalls that the obligations incurred by the State under Articles 3 and 8 of the Convention in cases such as this, involving and affecting a child, allegedly victim of sexual abuse, require the effective implementation of children ’ s right to have their best interests as a primary consideration (see paragraphs 77, 78, 81 and 83 above, see also in various contexts Neulinger and Shuruk, cited above, § 134; Scozzari and Giunta, cited above, § 169; and Blokhin v. Russia [GC], no. 47152/06, § 138, ECHR 2016) and to have the child ’ s particular vulnerability and corresponding needs adequately addressed by the domestic authorities (see, mutatis mutandis, O ’ Keeffe v. Ireland [GC], cited above, § 146; and M.G.C. v. Romania, cited above, § 73).
112. In view of the above, the Court considers that States are required under Articles 3 and 8 to enact provisions criminalising the sexual abuse of children and to apply them in practice through effective investigation and prosecution ( see paragraph 110 above; see also X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91; Söderman, cited above, §§ 82-83; and M.G.C., cited above, §§ 57-58 ), being thereby mindful of particular vulnerability of children, their dignity and their rights as children and as victims. These obligations also stem from other international instruments, such as, inter alia, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (see paragraphs 78 to 81 above, including the relevant parts of the Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, see paragraph 83 above).
113. Finally, the Court recalls that where a particularly important facet of an individual ’ s existence or identity is at stake, or where the activities at issue involve a most intimate aspect of private life, the margin allowed to the State is correspondingly narrowed (see Söderman, cited above, §§ 78 ‑ 79, with further references).
(b ) Application of these principles in the present case
114. The Court notes at the outset that on 16 June 2014 A went to the police and a day later to the competent social welfare centre to report that her daughter B had been sexually abused by her father. Several witnesses confirmed the allegations of overtly sexualised behaviour of B (see paragraphs 11, 14 and 36 above), and A also said that B had told her and her sister that her father had played sexualised games with her (see paragraphs 8 and 11 above). These allegations were sufficient to engage the authorities ’ obligation to investigate the situation.
115. The Court notes that there are three aspects to the applicant ’ s complaints. Firstly, whether there had been an appropriate legal and regulatory framework for the protection of her rights under Articles 3 and 8 of the Convention; secondly, whether in the application of that framework to her particular case the national authorities had complied with their procedural obligations to conduct an effective investigation; and, thirdly, whether in conducting their investigation the national authorities have sufficiently taken into consideration her rights as a child victim of sexual abuse.
116. The authorities have to be prepared for such difficult situations as allegations of sexual abuse of children by persons close to them, and be ready to face them properly by enacting efficient criminal-law provisions concerning sexual activity with children and by conducting an effective investigation into any such allegation (see paragraph 11 0 above; see also Söderman, cited above, §§ 82-83; and C.A.S. and C.S., cited above, §§ 71 ‑ 7 2 ). In this connection the Court notes that the Lanzarote Committee in its 1 st implementation report on the protection of children on sexual abuse in the circle of trust pointed out that the authorities should also ensure the coordination and collaboration of the different players who intervene for and with the child victim (see paragraph 80 above).
117. As to the criminal-law mechanisms provided in the Croatian legal system in connection with the State ’ s obligations under Articles 3 and 8 of the Convention, it is not disputed that the criminal law prohibited the sexual abuse alleged by the applicants as an aggravated offence when compared to the same acts against adult individuals and provided for the prosecution and effective punishment of those responsible (see paragraphs 62 and 63 above).
118. The Court further notes that the Code of Criminal Procedure contains a provision ensuring special rights of a child victim of a criminal offence (see paragraph 63 above).
119. The Court also observes that certain rules on the procedures to be followed by authorities such as the police, social welfare centres or medical institutions in Croatia in cases of domestic violence and/or sexual abuse of children are provided for in three Protocols adopted by the Croatian Government (see paragraphs 67 - 75 above). Those Protocols contain rules which require co-ordinated action by all the authorities involved in cases of sexual abuse of children. The procedures followed must be efficient and respectful of the physical and psychological integrity of the child, whose best interests are of primary importance. At the time when A made allegations of sexual battery of B, Protocol 1 had already been in force, whereas Protocols 2 and 3 were adopted while the allegations were being assessed by the national authorities. The Court notes that none of those Protocols envisaged a detailed flowchart which the domestic authorities had to follow in cases of alleged sexual abuse of a child.
120. However, the Court ’ s responsibility being the pronouncing on whether a certain situation amounts a violation of the Convention and not identifying best practices, which would be particularly beneficial in cases such as the present one (see, mutatis, mutandis, Muršić v. Croatia [GC], no. 7334/13, § 113, ECHR 2016), it is satisfied that in Croatia there exists an adequate legal and regulatory framework relevant for the specific circumstances of the present case.
121. The Court will now examine whether the domestic authorities ’ compliance with the relevant procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s procedural obligations under Articles 3 and 8 of the Convention. In this connection, the Court considers that the criminal-law mechanisms should be implemented so as to address the particular vulnerability of the applicant as a child of a young age, who had allegedly been a victim of sexual abuse by her father, taking the child ’ s best interests as a primary consideration and in this connection to afford protection to her victim ’ s rights and avoid secondary victimisation ( compare Y. v. Slovenia, cited above, §§ 101-104 and international materials as well as domestic law cited in paragraphs 62 - 75 above ).
122. The Court notes that on 16 June 2014 A informed the police and the day after the relevant social welfare centre about the alleged sexual abuse of her daughter. Whereas certain criticism might be directed at the authorities for not organising an interview of B with the competent experts of their own motion, the Court notes that at that time A had already contacted the Polyclinic on the advice of “the Brave Telephone” and that an appointment in the Polyclinic, where the applicant was eventually interviewed, had been scheduled for 20 June 2014, four days after the incident had been reported (see paragraph 10 above). Moreover, it cannot be said that the relevant social welfare centre or the police remained inactive in this sense, as they both contacted the Polyclinic urging it to deliver its findings (see paragraph 18 and 20 above).
123. At the Polyclinic, the applicant was seen by a team of experts, including a paediatrician (see paragraph 22 above). Further to this, on 2 July 2014, at the Polyclinic ’ s instruction, B was seen by a gynaecologist, albeit with a considerable delay. No evidence of sexual abuse was found (see paragraph 21 above). The final expert report issued by the Polyclinic of 4 July 2014 established that B did not show any signs of being sexually abused and that there had been pressure and the possibility of inducement by the mother (see paragraph 22 above).
124. The Court further observes that subsequent psychological reports were all inconclusive. The expert report of 10 November 2014 stated that B described sexualised behaviour of C towards her and that the child needed to continue therapy (see paragraph 40 above). The expert report of 1 December 2014 established that B had been exposed to content and/or conduct of a sexualised nature by an adult, which had resulted in her behaving in an overtly sexualised manner (see paragraph 42 above).
125. As to the applicant ’ s assertion that none of the interviews had been conducted in such a manner that they could have been accepted as evidence during subsequent court proceedings, the Court notes that none of the experts who had interviewed her could reach the conclusion that she had actually been sexually abused by her father. The State Attorney ’ s Office concluded that there had been no grounds for prosecuting C and the Court, for its part, finds no reasons to call into question that conclusion.
126. The Court further observes that the police began interviewing witnesses the very next day, following A ’ s report of the alleged sexual abuse (see paragraph 1 4 above). They interviewed A, two of her siblings, teachers from the kindergarten the applicant attended at the relevant time and her paediatrician. Later on, they also interviewed C and members of his family (see paragraphs 23 and 29 above).
127. The Court recognises that the Croatian authorities faced a difficult task, as they were confronted with a sensitive situation, conflicting versions of events and little direct evidence. The authorities had to deal with two irreconcilable versions of the facts and the results of three inconclusive expert opinions.
128. After all relevant evidence had been gathered, the prosecution authorities concluded that there had been insufficient evidence for the prosecution of C. The Court, for its part, does not consider itself to be in a position to draw a conclusion on the issue, and reiterates that it cannot substitute its own findings of fact for those of the national authorities, which are better placed to assess the evidence adduced before them and the importance of witness testimony (see M.P. and Others v. Bulgaria, no. 22457/08, § 112, 15 November 2011 ).
129. In the light of the above considerations, the Court does not consider that the case at hand discloses any culpable disregard, discernible bad faith or lack of will on the part of the police or the prosecuting authorities as regards properly holding perpetrators of serious criminal offences to account under domestic law, and in particular as regards the establishment of the true facts in the case at hand and the punishment of those responsible (ibid. , § 113). Moreover, the Court is satisfied that the domestic authorities did everything that could have reasonably been expected from them to protect the rights of the applicant, a child allegedly victim of sexual abuse, and to act in her best interest (see paragraphs 14, 16-21, 24-30 and 32-36 above).
130. Against the above background, the Court considers that there has been no violation of the procedural aspect of Articles 3 and 8 of the Convention in the particular circumstances of the present case.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE SUPERVISION OF PARENTAL CARE
131. The documents submitted with the application show that an expert in psychology found that the applicant had been severely socially and emotionally neglected by both parents (see paragraph 42 above). The Court therefore communicated the issue under Article 8 of the Convention whether the State authorities had complied with their positive obligation to properly address the issue of the child ’ s serious neglect by her parents. The relevant part of Article 8 is cited above ( see paragraph 84 above).
132. The parties made no objections in that respect.
133. The Government argued that the above complaint was premature since two sets of civil proceedings at national level, both concerning the custody of B, were still pending and because the measures applied by the Centre were still ongoing.
134. The applicant contested those arguments.
135. The Court notes that the expert reports concerning the applicant concluded that she had been seriously neglected and had serious behavioural problems. Counselling was recommended for both parents and the child. The Court considers that in assessing the State ’ s compliance with its positive obligations under Article 8 of the Convention, considerable importance should be attached to the efforts of social services and the child protection authorities to handle the situation and provide assistance and counselling to the applicant and her parents, A and C. It notes that the social services have been implementing various measures aimed at normalising the relationship between the applicant and her father. Psychological, psychiatric and pedagogical experts have been involved, as have social workers. Meetings have taken place with A and professional assistance has been provided to her so that she can cope better with caring for B. Contact between the applicant and her father C and members of his family have been supervised and regular reports have been submitted. The social services also held consultations with the professionals from the kindergarten and later on the school B attended (see paragraphs 49 -5 9 above).
136. In light of all the material in its possession, even assuming that the Court has jurisdiction to examine this issue (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 121-122, 20 March 2018), it finds that this complaint does not disclose any appearance of a violation of Article 8 of the Convention. Accordingly, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
1. Declares, unanimously, the complaint under the procedural aspect of Articles 3 and 8 of the Convention in respect of B admissible and the remainder of the application inadmissible;