CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 janvier 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s68D1564D { width:34.89pt; display:inline-block } .sDD6F64E2 { width:137.11pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s9E436411 { width:138.09pt; display:inline-block }   FIRST SECTION DECISION Application no. 48146/16 A.H. against Hungary   The European Court of Human Rights (First Section), sitting on 17   January 2023 as a Chamber composed of:   Krzysztof Wojtyczek , Acting President ,   Péter Paczolay,   Alena Poláčková,   Lətif Hüseynov,   Ivana Jelić,   Erik Wennerström,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to the above application lodged on 4 August 2016, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the decision not to have the applicant’s name disclosed, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms A.H., is a Hungarian national, who was born in 2004 and lives in Budapest. She was represented before the Court by Ms J. Spronz , a lawyer practising in Budapest. 2.     The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     From 2010 onwards, divorce proceedings between the applicant’s parents were in progress before the Pest Central District Court. With regard to the issue of placement of the applicant, then a child, the forensic psychologist T.M. interviewed her in May 2011 and raised the suspicion of potential sexual assaults in the past because the applicant had talked in detail about molestation by her father. The expert’s report suggested that on three different occasions in 2008–2009 the father might have touched the applicant sexually while in his temporary care. Apparently, the mother had contacted a centre for victims of sexual abuse sometime in 2010; however, a precise timeline of these events is not available. 5.     On 1 June 2011 the court hearing the divorce case signalled the suspicion of a crime to the Public Prosecutor’s Office. 6.     The prosecutor opened an investigation on 22 September 2011 and forwarded the case to the police department in charge of protection of juveniles. The latter collected documentation from various authorities and then took witness testimony from the applicant’s mother on 11   November   2011. 7.     The mother told the police in particular that, while abroad for some time in 2008, she left the applicant in her father’s custody; and that, on her return, the applicant, acting strangely, had told her about sexual touching by her father. Apparently, the father had also insisted that the applicant should never tell this to anyone. These elements were corroborated by the applicant’s maternal grandmother. 8.     The psychologist F.M. was also heard and told the police that the applicant’s mother had approached her for an expert opinion for the divorce proceedings so as to prevent the father from contacts with the applicant because of the molestation allegations. However, the interview had ultimately not materialised because the applicant was apparently unwilling to talk to her. 9.     On 30 December 2011 the forensic expert psychologist Sz.Zs. examined the applicant. In the opinion issued, the expert described the applicant’s statements as sound in that they reflected real life experience. 10.     On 26 January 2012 an ad hoc guardian was appointed for the applicant. 11.     On 10 February 2012 the applicant was heard by the investigating judge. Based on her testimony and conduct at the hearing, the judge decided that supplementing of the forensic expert opinion was necessary. The applicant was not re-examined in connection with the supplementary opinion, which was prepared using existing documents. 12.     On 2 April 2012 the police interrogated the father as a suspect. He denied the allegations, arguing that the mother must have trained the child to present the story of molestation. In pursuit of a motion by the father’s lawyer, a further supplementing of the forensic opinion was ordered to find out about any influence by the parents. Again, the supplementation was made based on existing documents. 13.     Subsequently, several family members and witnesses were heard. 14.     On 12 June 2012 a forensic expert psychologist examined the father. Subsequently he proposed a graphometric and a lie-detecting test. The police agreed and the test was performed. The expert graphologist considered that the suspect was probably involved in no crime. 15.     A polygraph test ensued by which it was found that the suspect had not given any misleading answers. 16.     In a confrontation between the parents, the mother explained that she had not contacted the authorities earlier than 2010 because the applicant had told her about the incidents only then, and previously she had had only an inkling. 17.     The divorce was pronounced on 19 November 2012 and the custody of the applicant was granted exclusively to the mother. The proceedings continued regarding the father’s access rights. An interim measure, granting controlled contact rights to the father through a child welfare centre, had been in place from 22 June 2011. On 15 February 2013 it was replaced by a fresh court order prescribing controlled contacts through a foundation. This scheme, however, did not function and on 12 March 2015 was replaced by a new controlled contact scheme through the local family support centre. Ordering this measure, the High Court held that the lasting suspension of contacts would cause irreversible damage to the father–daughter relationship. After psychological mediation, the implementation of this scheme started in September 2016. 18.     Meanwhile, a bill of indictment against the father was preferred on 18   April 2013. 19.     The case was being tried from 21 January 2014 onwards. After several hearings, on 27 February 2015 the court heard three experts and – having identified conflicting observations in the existing expert opinions – decided that the suspect, the mother, and the applicant were to be examined by a forensic expert psychologist; it also ordered a complex family examination. 20.     On 14 April 2015 the appointed expert excused herself saying that the questions put by the court could no longer be answered after such lapse of time from the alleged incidents. Another expert was appointed on 15   May   2015. The latter could examine only the father, because the applicant and her mother remained unavailable for the tests, despite several summons. An incomplete expert opinion was prepared, which was submitted to the court on 12 October 2015. 21.     On 21 October 2015 the court ordered supplementing the expert opinion and fined the mother for not attending the examination. The summons for a repeated examination could not be delivered to the mother; and an order for her apprehension in order to be presented to the expert was also to no avail. 22.     On 4 February 2016 the court acquitted the father because the charges could not be proven. RELEVANT LEGAL FRAMEWORK 23.     Act IV of 1952 on Family Law provided at the material time: Section 1 “(2) In applying the present law, due attention must be paid to the interests of the minor child and to the safeguarding of their rights.” 24.     Act XXXI of 1997 on Child Protection provides: Section 6 “(5) The child has the right to respect for his or her human dignity, to protection against abuse – physical, sexual or mental violence –, neglect and informational harm. ... (5a) The child has the right to have the professionals acting for his or her protection, especially in order to recognise and eliminate abuse of the child, apply uniform principles and methodology.” 25.     Act XIX of 1998 on Criminal Procedure provides: Section 64/A “The criminal procedure shall be conducted with priority a) in case the victim of crimes against life, limb and health ... or crimes against marriage, family, youth and sexual morals ... was a minor ...” Section 207 “(4) At the motion of the prosecutor, prior to the filing of the indictment, the investigating judge shall hear the witness under the age of fourteen if there is reasonable ground to believe that questioning at the hearing would adversely affect his personal development. ...” 26.     The Old Criminal Code (Act IV of 1978) provided at the material time: Section 198 “(1) A person who by violence or direct menace against life or limb forces another person to engage in gross indecency or to the endurance thereof, or uses for gross indecency the incapacity of another person for defence or for manifestation of will, commits a felony and shall be punishable with imprisonment between two to eight years. (2) The punishment shall be imprisonment from five years to ten years, if a) the victim is under twelve years of age, b) the victim is under the education, supervision, care or medical treatment of the perpetrator; ...” COMPLAINT 27.     The applicant complained under Articles 3 and 8 of the Convention that the authorities investigated her claims of sexual abuse inadequately, exposed her to secondary victimisation and, by not barring the father’s contact rights altogether, caused her psychological distress and suffering. THE LAW 28.     The applicant complained that the authorities’ handling of her case amounted to degrading treatment in disrespect for her private life. She relied on Articles 3 and 8 of the Convention. 29.     Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 30.     Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Arguments of the parties 31.     The Government argued that the case was accorded priority as the law required. Between the inception date of the investigation (22   September   2011) and the indictment (18 April 2013) the authorities performed numerous measures of investigation, in particular, by obtaining opinions from various experts. The applicant was interviewed only twice, once by the expert psychologist (because the previously existing expert opinion had been produced in the divorce, rather than the criminal, case) and once by the investigating judge (according to a legal provision designed to protect minors by pre-empting their being questioned in open court). The procedure was conducted efficiently and with due respect paid to the interests of the child. 32.     The applicant submitted that the lengthy procedure was inapt to protect her from sexual abuse and exposed her to secondary victimisation. This state of affairs was made worse by the inaction of the ad hoc guardian and the courts’ insistence on the father maintaining some contact rights. The Court’s assessment General principles 33.     The Court has recently summarised the relevant general principles in X   and Others v. Bulgaria [GC], no. 22457/16, §§ 176-78 and 184-92, 2   February 2021; A and B v. Croatia , no. 7144/15, §§ 106-13, 20 June 2019; and R.B. v. Estonia , no. 22597/16, §§ 79 and 83-84, 22 June 2021. A synopsis of those principles can be outlined as follows. 34.     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. Regarding the protection of the physical and psychological integrity of an individual from other persons, 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. 35.     Positive obligations of the states under Article 3 and 8 of the Convention also include requirements related to the effectiveness of the investigation. 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. Positive obligations under Articles 3 and 8 include the protection of the rights of victims in criminal proceedings. 36.     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. 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. 37.     In cases of sexual abuse children are particularly vulnerable. The right to human dignity and psychological integrity requires particular attention where a child is the victim of violence. 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 and to have the child’s particular vulnerability and corresponding needs adequately addressed by the domestic authorities. 38.     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, 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. 39.     Finally, 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. Application of those principles in the present case 40.     The Court observes that the possibility of sexual abuse having been committed was flagged up by the forensic psychologist acting in the divorce case in May 2011 and signalled by the civil court to the relevant authorities on 1 June 2011. There is no element present in the case file showing that the case was brought to the authorities’ attention prior to that. 41.     An investigation was being conducted as of 22 September 2011. Documentary evidence was collected; and the applicant’s mother was interviewed on 11 November 2011. The psychologist F.M. was also heard but could not produce material information; a forensic expert psychologist examined the applicant on 30 December 2011. Six weeks later, the investigating judge heard the applicant, and the forensic expert opinion was supplemented. In the first half of 2012, the applicant, the suspect and several witnesses were questioned, and expert opinions were obtained and again supplemented. Furthermore, lie-detecting tests took place which did not quite corroborate the suspicion. A confrontation between the parents was also carried out by the authorities. In November 2012 the divorce was pronounced, after which the authorities issued various orders to regulate the contact between the father and the applicant. 42.     The investigation culminated in a bill of indictment in April 2013. The trial was progressing from January 2014 onwards. Several hearings took place, and, in the period February to October 2015, more than a few attempts were made to obtain adequate expert evidence, but the mother was apparently reluctant to subject the daughter to further examinations. To secure the mother’s co-operation, the court imposed a fine and issued an injunction, but in vain. The case was ultimately dropped in February 2016 for insufficiency of the evidence. 43.     For the Court, the above course of events demonstrates that the authorities took the applicant’s case seriously and made the requisite effort to secure evidence for a successful prosecution. Overall, no particular laxity or substantial inaction can be reproached to them. While it is true that the procedure had eventually to be discontinued for lack of proof, this outcome cannot be taken to have invalidated the authorities’ otherwise genuine attempts to prosecute any crime that may have been committed. The Court is aware that the length of the prosecution may have an impact on the effectiveness of the procedural response (see D.M.D. v. Romania , no.   23022/13, §§ 44-52, 3 October 2017). However, in the present case the only periods when the procedure stalled were between 1 June 2011 (when the suspicion of a crime was signalled to the prosecutor) and 22 September 2011 (when the investigation was opened) and, moreover, between the indictment in April 2013 and the first hearing in January 2014. Furthermore, the Court notes that it took about seven months after the investigation had been opened until the father was questioned as a suspect. While regrettable, the Court notes that these delays do not appear to have impacted negatively on the collection of evidence and cannot be said to have affected the effectiveness of the investigation in question (see Nicolae Virgiliu Tănase v. Romania [GC], no.   41720/13, § 184, 25 June 2019). 44.     Turning to the question of secondary victimisation, the Court – while acutely aware of this danger in this kind of cases – notes that, in the criminal procedure, the applicant was questioned by the authorities on altogether two occasions during the five-and-a-half-year long procedure: once by the forensic psychologist in December 2011 and once by the investigating judge in February 2012, the interview in May 2011 having been made for an entirely different purpose. Howsoever traumatising the repeated examinations may have been for the applicant, the Court is not persuaded that the authorities made use of this procedure more often than was absolutely necessary or that they disregarded the applicant’s vulnerability. 45.     Lastly, as regards the applicant’s discontent with the manner in which the father’s access rights were regulated, the Court considers that the authorities faced a difficult situation when balancing between the competing interests present in the case. The solutions chosen by the authorities, such as controlled access and mediation, cannot be said biased or unreasonable. 46.     In sum, the Court concludes that there is no appearance that the authorities failed to discharge their positive obligations flowing from Articles   3 and 8 of the Convention. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 16 February 2023.   Liv Tigerstedt   Krzysztof Wojtyczek   Deputy Registrar   Acting President