CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 juin 2021

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margin-bottom:0pt; text-align:right } .sA2F8E2C6 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-size:14pt; text-transform:uppercase } .fixListIndent { list-style-position: inside }   THIRD SECTION CASE OF R.B. v. ESTONIA (Application no. 22597/16)     JUDGMENT   Art 3 (procedural) and Art 8 • Positive obligations • Effective investigation • Failure to advise 4-year old child of her duty to tell the truth and her right not to testify against her father, leading to exclusion of her testimony and father’s acquittal of sexual abuse • Significant flaws in procedural response to applicant’s allegations, undermining effective prosecution of child sexual abuse • Strict application of procedural rules making no distinction between children and adults • International standards requiring safeguarding of child’s testimony both during the pre-trial investigation and trial and to take due account of particular vulnerability and needs of a young child giving evidence   STRASBOURG 22 June 2021   FINAL   22/09/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of R.B. v. Estonia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Dmitry Dedov,   María Elósegui,   Darian Pavli,   Anja Seibert-Fohr,   Peeter Roosma, judges, and Milan Blaško, Section Registrar, Having regard to: the application (no.   22597/16) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Ms R.B. (“the applicant”), on 19 April 2016; the decision to give notice to the Estonian Government (“the Government”) of the complaint concerning the lack of an effective investigation into the applicant’s alleged sexual abuse and to declare inadmissible the remainder of the application; the decision not to have the applicant’s name disclosed; the parties’ observations; Having deliberated in private on 16 March 2021 and on 18 May 2021, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     The case concerns the applicant’s complaint under Articles 3 and 8 of the Convention that the authorities failed to conduct an effective criminal investigation into her allegations of sexual abuse by her father, who was acquitted following a breach of the procedural rules in the collection of evidence. THE FACTS 2.     The applicant was born in 2007. She was represented by Mr   H.   Kuningas, a lawyer practising in T. 3.     The Government were represented by their Agent, Mrs M. Kuurberg, Agent of the Government to the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicant was born in August 2007. In September 2010 her parents separated. The applicant continued to live with her mother and met with her father in accordance with an agreement between the parents. As from February 2012 meetings with the child took place pursuant to arrangements fixed by a court (see civil proceedings below). 6.     According to statements given by the applicant’s mother in the subsequent criminal proceedings, she had become suspicious of the father’s behaviour already in 2009 when her daughter had complained of pain in her bottom. In 2011 she had started noticing changes in her daughter’s behaviour when she returned from visits with her father. When questioned, her daughter had revealed that she had been sleeping naked with her father, that she had massaged him all over the body, including his genitals, and that he had inserted his fingers in her anus and vagina, causing pain.          Criminal proceedings 7.     On 19 March 2012 the applicant, who at the time was about four and a half years old, made an oral report of a crime to the police. Her statements were video-recorded and transcribed by a female senior investigator from the child protection service in the presence of a psychologist and the applicant’s mother. During the interview, the applicant recounted how she and her father had massaged each other, including her stroking his sexual organ, and demonstrated her father’s activities on a doll. 8.     On the basis of that report, criminal proceedings were instituted against the applicant’s father. Later the same day, 19 March 2012, the applicant was questioned as a victim of crime by an investigator in the presence of the same psychologist and the applicant’s mother. The interview was also video-recorded. 9.     On 3 April 2012 the investigator commissioned a comprehensive psychiatric and psychological assessment of the applicant, which was carried out from 9 to 26 April 2012. According to the expert report of 3 May 2012, the applicant was suffering from separation anxiety, but her psychological development was appropriate to her age and she had no increased tendency to fantasise. However, she was too young to attend court hearings and give statements there. 10.     On 16 May 2012 a further video-recorded interview of the applicant took place in the presence of her mother. 11.     On 20 June 2012 the applicant’s father was questioned as the suspect. 12.     On 29 June 2012 an expert conducted a physical examination of the applicant and found no bodily injuries on her person, including in the rectal or genital area. 13.     On 27 August 2012 the video-recordings of the applicant’s interview were presented to the suspect in the presence of his counsel. It was explained to them that they could submit any questions to the applicant in writing. 14.     On 3 September 2012 a second interview with the suspect took place. 15.     On 18 February 2013, following a psychiatric assessment of the suspect, the experts found no reason to establish any sexual disorder and concluded that he was mentally healthy. 16.     On 27 June 2013 the prosecutor drew up a bill of indictment and submitted it to the County Court. According to the charges, in the period from 2009 to March 2012 the applicant’s father had repeatedly engaged in sexual intercourse with his daughter, taking advantage of the child’s inability to comprehend, by inserting his finger into the child’s vagina and anus. In addition, by ordering his daughter to stroke his sexual organ, he had engaged in a sexual act other than intercourse with a child. Those acts were qualified under the provisions of Articles 141 (rape) and 142 (involvement of a minor in satisfaction of sexual desire) of the Criminal Code, as applicable at the time. 17.     The County Court held a preliminary hearing in October 2013. Further in camera hearings took place in February, April and October 2014. The victim’s statements given during the investigation were disclosed and the court heard several witnesses, including those for the defence, as well as the experts who had prepared written reports. 18.     The accused pleaded not guilty. He argued, inter alia , that his daughter’s testimony was unreliable and contradictory. Her answers during the police interviews had been influenced by the presence of her mother, who had intervened and enticed the child with different promises. The interviews lasting over an hour had been too long for a small child, resulting in tiredness and a desire to please her interrogators, who had used leading questions. The criminal proceedings were a tool used by her mother to limit his access to the child. 19.     By a judgment of 4 November 2014, the County Court convicted the applicant’s father as charged and sentenced him to imprisonment for a term of six years. It found that the applicant’s testimony had been confirmed by the statements of her mother, witness statements and expert opinions. Having reviewed the video-recordings of the applicant’s questioning, the court found no undue influence or pressure on the part of the applicant’s mother or the investigator. It considered that the applicant had recounted actual events and found that there was no indication that she had been manipulated or that she was prone to fantasise. The fact that no injuries had been found on her body did not exonerate the accused, as her physical examination had taken place long after the events, and the touching of the accused’s sexual organs would not have left any traces. Nor was it important that the accused had not been diagnosed with any sexual disorder. 20.     On 12 December 2014 the accused lodged an appeal against the judgment of the County Court. He submitted, inter alia , that his conviction was essentially based on the unreliable testimony of a four and a half year-old child, and reiterated the arguments he had made before the first-instance court concerning the conducting of interviews (see paragraph 18 above). 21.     On 18 March 2015 the Court of Appeal, composed of three judges, dismissed the appeal and upheld the judgment of the County Court. While it accepted that the credibility of the applicant’s testimony was central to the case, upon reviewing the relevant video-recordings it found no indication of any undue influence on the child victim. It pointed out that the use of leading questions was authorised by the Code of Criminal Procedure in a situation where the age of a witness made it difficult for him or her to understand questions that were not leading. It also found that the presence of the applicant’s mother during the interviews had been in compliance with the criminal procedure. It referred to Article 20 of EU Directive 2011/92/EU, which required a Member State to ensure effective protection of the rights of children in criminal proceedings, including the possibility for a child victim to be accompanied by his or her representative during the provision of testimony. 22.     One judge of the Court of Appeal dissented, finding issues with both the reliability of the victim’s testimony and the way it had been taken. In particular, he considered that the testimony of the child victim had been obtained in breach of two essential requirements of criminal procedure. First, the child had not been informed of her obligation to tell the truth, so that she could understand the consequences of her testimony for her father. Secondly, the child had not been advised of her right not to give evidence against her next of kin . Those two requirements were clearly set out in law and applied also to minors, who should be informed thereof in a manner appropriate to their age. In practice, this had been done in other criminal cases. 23.     On 17 April 2015 the accused appealed, emphasising the inconsistency and unreliability of the evidence and arguing that there had been several violations of criminal procedure, including those highlighted by the dissenting judge of the Court of Appeal. 24.     On 23 October 2015 the Supreme Court quashed the judgments of the County Court and the Court of Appeal and acquitted the applicant’s father. It held that as the accused’s conviction was based to a decisive extent on the testimony of the child victim, it was important to follow rigorously the rules concerning the victim’s questioning. The lower courts, however, had relied on the statements given by the victim in the pre-trial proceedings, despite the fact that she had not been made aware of the obligation to speak the truth (Article 66 § 3 of the Code of Criminal Procedure) and had not been advised that she could refuse to give testimony against her father (Article 71 § 1 (1) of the same Code). It stressed that while the age of a witness should be taken into consideration when questioning him or her, the obligation to explain the need to tell the truth could not be disregarded, as this affected the weight of the credibility of the testimony. It further stated that there was no exception for minors from the general rule that one could refuse to give testimony for personal reasons. Should there be a need to depart from the general rules for questioning witnesses because of their age or mental state, it would be for the legislature to determine the situations justifying such departure. Statements obtained from the victim without informing her of her rights and obligations could not be considered lawful evidence, as they had been obtained by materially breaching the procedural law. The failure to provide the information could not be remedied by remitting the case to the lower-instance courts, as the victim had been heard during the pre-trial proceedings and not in court. The exclusion of the decisive evidence inevitably meant that the accused had to be acquitted of the charges against him. 25.     The Supreme Court also dealt with other procedural issues, pointing out further deficiencies in the lower-instance courts’ judgments. Firstly, the first-instance court and Court of Appeal had, contrary to the domestic procedural law, treated the statements given by a number of witnesses who had not been direct witnesses to any of the alleged offences as independent evidence, rather than hearsay. Secondly, the Court of Appeal had referred in its reasoning to the explanations given by the applicant during preparation of an expert opinion, despite the fact that those could not be used as evidence. Thirdly, the lower-instance courts had erroneously equated the oral report of a criminal offence as recorded by the police with the report of the victim’s testimony. This could be done only if the victim had been heard at the same time as the drawing up of the offence report and had then been duly informed of his or her rights and obligations. As this had not been done, relying on such a report as evidence amounted to a violation of procedural law. 26.     The Supreme Court found no issue with the presence of the applicant’s mother during the interviews. Although that situation was not specifically regulated in domestic law, the right for a child to be accompanied by his or her legal representative derived from Article 20 of EU   Directive   2011/92/EU. Furthermore, the use of leading questions was clearly provided for by law. 27.     The Supreme Court further noted that although the accused’s counsel had no right to be present during the interviews with the victim, he had had the opportunity, which he had not used, to put questions to the victim at both the pre-trial and court proceedings. 28.     Lastly, as regards the issue of credibility of the victim’s testimony, the Supreme Court found that the lower courts had failed to deal with the course of events prior to the reporting of an offence, including the possible effect of time and psychological consultations on the victim’s memory. Consideration should have been given to the terminology used by the victim and to other circumstances capable of indicating that her statements might have been influenced by other people.        Civil proceedings 29.     On 20 February 2012 the County Court fixed the arrangement for the applicant’s contact with her parents. On 5 April 2012 the arrangement was amended so as to limit the father’s access in view of the criminal proceedings instituted against him on 19 March 2012. 30.     On 26 June 2013 the court barred the applicant’s father’s access to her completely. 31.     On 20 November 2013 the civil proceedings were suspended pending the outcome of the criminal case against the applicant’s father. Following the Supreme Court decision of 23 October 2015 acquitting the applicant’s father, the civil proceedings were resumed on 9 November 2015. 32.     On 4 May 2016 the County Court issued a decision on the care of and access to the applicant, which was upheld by the Court of Appeal. However, the decision was quashed by the Supreme Court and the case was remitted to the Court of Appeal for fresh consideration. 33.     On 26 June 2017 the Court of Appeal granted sole custody of the applicant to her mother and barred the father’s access to her completely until she reached the age of majority. It found it established that he had sexually abused the applicant, thereby endangering her physical, mental and spiritual well-being. The finding was based on the testimony of the child heard before the first-instance court, the statements of her mother and witnesses, as well as on an expert opinion concerning the child’s mental development. The Court of Appeal did not agree with the argument of the applicant’s father to the effect that since he had been acquitted in the criminal proceedings, it was not open to the civil courts to rely on the allegations of sexual abuse. The Supreme Court’s judgment related to his criminal liability, whereas the civil courts had to assess whether his behaviour constituted a danger to the child in the context of a custody-and-contact dispute. In carrying out this assessment, the courts had to take into account all the evidence submitted and decide whether an allegation made by a party had been proven. The Court of Appeal found it important to note that the applicant’s father had been acquitted by the Supreme Court on account of a material breach of procedural law, not because of lack of a criminal offence. 34.     It appears that no appeal was lodged against the decision of the Court of Appeal. RELEVANT LEGAL FRAMEWORK AND PRACTICE I.     DOMESTIC LAW AND PRACTICE A.     Constitution 35.     Under Article 22 of the Constitution, no one may be compelled to testify against himself or herself, or against those closest to him or her. Article 25 provides that everyone is entitled to compensation for intangible as well as tangible harm that he or she has suffered as a result of the unlawful actions of any person. B.     Criminal Code 36.     The sexual offences included in the Criminal Code include rape (Article   141), and intercourse or other acts of a sexual nature with a child (currently Article 145). In relation to sexual offences, a person is deemed to be incapable of comprehension if he or she is under ten years of age (Article   147). C.     Code of Criminal Procedure 37.     The relevant provisions of the Code of Criminal Procedure read as follows: Article 38.   Rights and obligations of victims “ (1)     A victim has the right to: ... 3) give or refuse to give testimony in accordance with the provisions of Articles 71 to 73 of this Code.” Article 66.   Witness “... (3) A witness is required to give testimony unless there are lawful grounds under Articles 71 to 73 of this Code for refusal to give testimony. When giving testimony, the witness is required to tell the truth.” Article 70.   Specifications concerning hearing of witnesses who are minors “ (1)     A body conducting proceedings may involve a child protection official, social worker, teacher or psychologist in the hearing of a witness who is a minor. (2)     If a body conducting proceedings has not received appropriate training, involvement of a child protection official, social worker, teacher or psychologist in the hearing of a minor is mandatory if:     1)     the witness is under ten years of age and repeated questioning may have a harmful effect on the minor’s mind;     2)     the witness is under fourteen years of age and the questioning is related to domestic violence or sexual abuse;     3)     the witness has a speech impairment, sensory or learning disability or a mental disorder.   (3) If necessary, the questioning of minors is video recorded. In the case specified in paragraph (2) of this Article, the questioning of minors is video recorded if the intention is to use the interview as evidence in court proceedings because the minor cannot be heard directly in a court on account of his or her age or mental state.   (4) A suspect has the right to examine during the pre-trial proceedings the video recordings specified in paragraph (3) of this Article. The suspect or his or her counsel has the right to submit questions to witnesses within five days of the examination. A prosecutor’s office shall review a request within five days of receipt thereof. Dismissal of a request shall be formalised by a decision, a copy of which shall be communicated to the person who submitted the request. Dismissal of a request shall not prevent re-submission of the request in accordance with the procedure provided for in Article 225 of this Code or in the court proceedings.” Article 71.   Refusal to give testimony for personal reasons “(1) The following persons have the right to refuse to give testimony as witnesses:   1) the descendants and ascendants of the suspect or accused; ...” Article 287 1 .   Questioning of witness “...   (3) Before interviewing a witness, the court shall explain to the witness the legal bases for refusing to give testimony and the obligation to speak the truth in court, and shall obtain the signature of the witness to this effect.   (4) A judge shall warn a witness of fourteen years of age or older that he or she shall be held criminally liable if he or she refuses to give testimony without any legal grounds or if he or she knowingly gives false testimony. ...” Article 288 1 .   Leading questions “   ... (2)     For the purpose of facilitating progress in the hearing of a witness, a court may allow leading questions to be posed in other circumstances if:... 2) the question pertains to an established fact or contains a statement which is not contested; 3) the question is necessary for the purpose of introducing the main question; 4) due to the age or state of health of the witness, it is difficult for him or her to understand questions which are not leading; 5) the witness states that he or she does not remember well the circumstances which are the object of the questioning.” Article 290 1 .   Specific requirements for testimony given in pre-trial proceedings by witnesses who are minors “ (1)     A court may not summon a minor at the request of a party to the court proceedings or admit as evidence testimony given by the minor in pre-trial proceedings, provided that the testimony was video-recorded and counsel has had the opportunity to pose questions to the witness in the pre-trial proceedings about the facts relating to the subject of proof, if:   1) the witness is under ten years of age and repeated questioning may have a harmful effect on his or her mental state;   2) the witness is under fourteen years of age and the hearing is related to domestic violence or sexual abuse;... (2) If after examination of the evidence specified in paragraph (1) of this Article the court finds that it is necessary to question the minor about additional circumstances, it may question the witness on its own initiative or on the basis of written questions prepared by the parties to the court proceedings.” D.     Guidelines on the special treatment of minors in criminal proceedings, issued by the Prosecutor General on 29 June 2007 38.     The Guidelines state that the right to refuse to give testimony must be explained to a minor thoroughly in a manner which he or she is capable of understanding. It is recommended to use the assistance of a specialist in explaining to a minor his or her rights. Interviewing a suspect who is a minor does not differ from interviewing an adult suspect. However, procedural measures taken in respect of minors must take into account their age and the interests of the child. If possible, a witness under the age of ten should not be questioned at trial in order to avoid harmful consequences for the child (points 8-10 of the Guidelines). E.     Act on Compensation for Damage Caused in Criminal Proceedings 39.     The relevant provisions of the Act, which entered into force on 1   May   2015, read as follows : Section 7.     Compensation for damage regardless of final outcome of criminal proceedings “   (1) If a body conducting proceedings has violated procedural law and thereby caused damage to a person, the person has the right to claim compensation for such damage, regardless of the final outcome of the criminal proceedings by which the damage was caused to the person.   (2) A body conducting proceedings is exonerated from liability if it proves that it is not at fault in causing the damage.   (3) If the damage specified in subsection (1) of this section is caused by a court, the state is liable under the State Liability Act. ...” Section 11.     Compensation for non-pecuniary damage “... (2) A natural person shall be compensated for non-pecuniary damage under section   7 of this Act only if the person was deprived of liberty; he or she was tortured or treated inhumanly or degradingly; damage was caused to his or her health, the inviolability of his or her home or right to respect for private life; the confidentiality of his or her messages was breached or his or her honour or good name was tarnished in the criminal proceedings. Fault on the part of a body conducting proceedings does not constitute a prerequisite for compensation for non-pecuniary damage if the person was tortured or treated inhumanly or degradingly in violation of procedural law. ...” Section 21.   Lodging of claim after county court proceedings “... (4) If a person has failed, with good reason, to lodge a claim for compensation with a circuit court or if the existence of the basis for the claim for compensation for damage became evident only in cassation proceedings and the person has failed, with good reason, to lodge a compensation claim with the Supreme Court, the claim may be lodged with a prosecutor’s office or a body conducting extra-judicial proceedings. The claim shall be lodged within six months of the entry into force of the decision of the circuit court or Supreme Court. The adjudication of the claim shall comply with the provisions under part 2 of Chapter 4 of this Act.” F.      Domestic case-law 1.    Criminal proceedings 40.     In its judgment of 20 March 2002 in case no. 3-1-1-25-02 the Supreme Court found that a failure to inform a suspect or witness of their right not to incriminate themselves or their next of kin constituted a material breach of criminal procedural law, resulting in the inadmissibility of the evidence so obtained. It was impermissible to consider that duty as a formality by simply having a person sign or read the list of the relevant articles of the Code of Criminal Procedure. The investigator had to orally disclose and explain the relevant provisions to the witness. 41.     On 18 April 2005, in case no. 3-1-1-19-05, the Supreme Court considered that in assessing the effect of a breach of a procedural rule on the admissibility of the evidence, it was necessary to have regard to the purpose of the rule and whether the evidence could have been obtained without breaching it. 42.     In a judgment of 2 May 2007 in case no. 3-1-1-6-07, the Supreme Court held that not every violation of procedural law in the process of collecting evidence necessarily meant that the evidence was inadmissible. However, it was inexcusable for an investigator to knowingly violate procedural law by considering that a particular breach was not significant. Isolated violations may amount to a material breach of procedural law if the investigator committed them intentionally. 43.     On 6 October 2007 in case no 1-15-10967, the Supreme Court held that where a conviction was based on a single piece of evidence, such as testimony given by the victim, it was particularly important for the court to examine comprehensively and impartially all possible doubts that may have arisen in the assessment of that sole piece of incriminating evidence and to dispel those doubts convincingly and in a manner comprehensible to the reader. 44.     In case no. 3-1-1-72-07, dated 20 November 2007, the Supreme Court emphasised that only lawfully collected evidence could serve as a basis for punishing a person in criminal proceedings. Statements given by witnesses who had not been properly advised of their rights and duties could not constitute lawful evidence, as they had been obtained in material breach of procedural law. 2.    Compensation for damage 45.     On 13 June 2016 in case no. 3-1-1-34-16, the Supreme Court examined a compensation claim in respect of damage caused to the claimant by unlawful surveillance activities in the framework of criminal proceedings. It considered that since the surveillance activities in question had already been declared unlawful by a judgment of the criminal court, the damage caused fell within the scope of section 7(1) of the Act on Compensation for Damage Caused in Criminal Proceedings. The Supreme Court reiterated that it was only in exceptional circumstances, where a person had not had the opportunity to ask for the lawfulness of procedural measures to be assessed in the so-called main proceedings, that a court adjudicating on the compensation claim was competent to assess the lawfulness of actions taken or orders given in criminal proceedings . 46.     By a judgment of 22 December 2017 in case no. 1-16-2675 the Supreme Court awarded compensation to a convicted person in respect of non-pecuniary damage caused by unlawful court decisions relating to his pre-trial detention. II.   EUROPEAN UNION LAW 47.     The relevant part of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography provides as follows: Article 20 Protection of child victims in criminal investigations and proceedings “... 3.     Without prejudice to the rights of the defence, Member States shall take the necessary measures to ensure that in criminal investigations relating to any of the offences referred to in Articles 3 to 7: (a)     interviews with the child victim take place without unjustified delay after the facts have been reported to the competent authorities; (b)     interviews with the child victim take place, where necessary, in premises designed or adapted for this purpose; (c)     interviews with the child victim are carried out by or through professionals trained for this purpose; (d)     the same persons, if possible and where appropriate, conduct all interviews with the child victim; (e)     the number of interviews is as limited as possible and interviews are carried out only where strictly necessary for the purpose of criminal investigations and proceedings; (f)     the child victim may be accompanied by his or her legal representative or, where appropriate, by an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.   4.     Member States shall take the necessary measures to ensure that in criminal investigations of any of the offences referred to in Articles 3 to 7 all interviews with the child victim or, where appropriate, with a child witness, may be audio-visually recorded and that such audio-visually recorded interviews may be used as evidence in criminal court proceedings, in accordance with the rules under their national law.”   48.     Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishes minimum standards on the rights, support and protection of victims of crime. The relevant part of the Directive reads as follows: 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; (c) victims may be accompanied by their legal representative and a person of their choice, unless a reasoned decision has been made to the contrary; (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 23 Right to protection of victims with specific protection needs during criminal proceedings “1.       Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings. 2.     The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1): (a)     interviews with the victim being carried out in premises designed or adapted for that purpose; (b)     interviews with the victim being carried out by or through professionals trained for that purpose; (c)     all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice; (d)     all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.” 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.” III.   INTERNATIONAL MATERIAL A.     United Nations Convention on the Rights of the Child 49.     The relevant provisions of the Convention, which came into force in respect of Estonia on 20 November 1991, 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, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. ... Article 34 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.     Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“the Lanzarote Convention”) 50.     The Convention was adopted in Lanzarote on 25 October 2007 and entered into force on 1 July 2010. It was ratified by Estonia on 22   November 2016 and came into force on 1 March 2017. Its relevant parts provide as follows: Article 4 – Principles “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.” Chapter VI – Substantive criminal law Article 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; b. engaging in sexual activities with a child where: – use is made of coercion, force or threats; or – abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or – abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.” Chapter VII – Investigation, prosecution and procedural law Article 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. 4 Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.” 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; ... c. enabling them, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, d