CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 juin 2019

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CROATIA   (Application no. 7144/15)                 JUDGMENT     STRASBOURG   20   June 2019       FINAL   04/11/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of A and B v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Ksenija Turković,   Aleš Pejchal,   Krzysztof Wojtyczek,   Pauliine Koskelo,   Tim Eicke,   Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 29 August 2017, 9 January 2018 and 30   April 2019, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 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. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The first applicant was born in 1984 and the second applicant in 2009. A.     Background to the case 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. B.     Criminal proceedings 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. Recommendations 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. C.     Further developments 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. D.     Other proceedings 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. II.     DOMESTIC LAW A.     Criminal Code 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). B     Code of Criminal Procedure 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: Article 2 “(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.” Article 44 “(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] ...” Article 205 “(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 ...” Article 207 “(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 ...” Article 285 “(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.” D.     Family Act 65.     The relevant provisions of the Family Act ( Obiteljski zakon , Official Gazette no. 103/2015) provide: Section 127 “(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.” Section 128 “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.” Section 131 “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.” Section 134 “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. III.     EUROPEAN UNION LAW 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: Article 1 Objectives “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.” Article 19 “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.” IV.     INTERNATIONAL MATERIALS A.     United Nations 77 .     The relevant provisions of the Convention on the Rights of the Child, which came into force on 2 September 1990, read as follows: Article 3 “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. ... Article 19 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