Published: 19 Jun 2020
M.M.B. v Slovakia
Case No.: 6318/17
Judgment date: 26 November 2019
The applicant was born in 2008. Her mother complained on her behalf under Article 8 (right to private life) that the authorities failed to effectively investigate her allegations of sexual abuse.
In 2012 the child’s mother first approached specialist psychologists because she suspected that her daughter, then four years old, had been sexually abused by her father. The experts considered that the child exhibited multiple symptoms attributable to abuse.
Two successive criminal investigations followed. Seven diverging expert reports were drawn up over the course of both investigations. Experts disagreed as to whether the child was likely to have been abused.
The seventh report, which the investigator had requested from a research institute in order to address these divergences, concluded that it was highly probable that the child had been sexually abused. This report provided a possible explanation for the differences of expert opinion. The revelation by the child of her abuse was a process composed of stages, in which she would refrain from making any statement, then deny any abuse, then divulge certain details, then withdraw her statements, and then reconfirm them. Importantly, her drawings and gestures matched her verbalisation of the abuse.
In 2015, however, the investigator discontinued the prosecution, disregarding these conclusions. He instead found that there was no doubt that the crime had not been committed.
The ECtHR found, by six votes to one, a violation of Article 8.
The Court reiterated that sexual abuse constitutes abhorrent wrongdoing, with debilitating effects on victims. Children are entitled to effective criminal law protection from such grave interferences: effective deterrence through effective prosecution. The right to human dignity requires effective implementation of a child’s right to have their particular vulnerability and corresponding needs addressed, with their best interests as the primary consideration.
The issue for the Court was whether the authorities consistently assessed the evidence and whether their final decision was sufficiently reasoned and convincing. It highlighted three key omissions by the domestic authorities.
Firstly, the investigator failed to adequately take into account the explanation by the authors of the seventh expert report that the applicant’s revelation of her sexual abuse was a process composed of stages in which her different responses would account for some of the divergences in the evidence. He also failed to assess the importance of the child’s non-verbal expressions of abuse, which were consistent with her verbal accounts.
Secondly, a sexologist’s expert report into the assessment of the applicant’s father indicated that sexual abuse can only have sexual or psychiatric motivation but ruled out such a motivation by the father without conducting a psychiatric examination. This therefore required clarification and indicated that the findings were speculative.
Thirdly, the reasons outlined for discontinuing the investigation were neither detailed nor convincing. Without having comprehensively explained why he had decided not to rely on expert opinion, which had addressed all the pertinent issues, the investigator prevented the criminal proceedings from continuing before the courts. In conclusion, the ECtHR found that the investigator’s assessment of the evidence was selective and inconsistent and had failed to assess the facts in a context-sensitive manner or have due regard to the special psychological factors in cases of the sexual abuse of young children.
In principle, considerable weight is to be attached to child-welfare authorities’ making an effort to protect and assist affected children, and to counsel others. In this case, the social-protection authority, appointed as the child’s legal guardian, did not even interview her.
The Court awarded the applicant €10,000 in respect of non-pecuniary damages.
This judgment enforces a standard for the context-sensitive analysis of conflicting evidence in cases of child sexual abuse. The ECtHR stressed the authorities’ duty to consistently engage in such an assessment in order to establish facts relating to allegations made. Inconsistencies in a child victim’s account should not be seen outside of the context of the consequences of sexual violence on her ability to process and narrate the abuse that she has suffered.
The ECtHR places the child’s dignity at the centre of the required approach. For an investigation to be effective, the authorities must be mindful of the particular vulnerability of the child, and of her being a rights-holder, both as a child and as a victim. An investigator is not allowed to neglect a child’s expressions, verbal and non-verbal, or her legitimate psychological reasons for not being able to straightforwardly disclose her trauma.
Yet the Court somewhat contradicts its own dignity-based standard in stating that “the testimony of a young child ha[s] to be taken with the utmost caution”. It does not elucidate on this further.
Notably, Judge Lemmens dissented in this case on the basis that the Slovakian authorities had fully and satisfactorily investigated the case. In doing so, he provided his own interpretation of the evidence, which he admitted is a “subjective summary”. He specifically questioned the conduct of the child’s mother, suggesting that she had engaged in the “memory contamination” of her daughter. It appears worrying that an ECtHR judge on the would engage in a regressive interpretation of the credibility of a child found by respectable experts who directly examined her to have displayed authentic behaviour and emotions.