CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 mars 2026

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GEORGIA (Application no. 35640/22)     JUDGMENT   Art 3 and Art 8 • Positive obligations • Ineffective criminal investigation into allegations of sexual abuse of a minor by her stepfather • Adequate legislative and regulatory framework in place to combat sexual offences against children • Investigative delays and inactivity • Investigation inconclusive • Authorities’ persistent failure – or possible unwillingness – to properly investigate serious allegations and lack of meaningful involvement of the applicant in the proceedings as a recognised victim • Criminal investigation liable to cause the applicant additional and unwarranted distress, amounting to secondary victimisation   Prepared by the Registry. Does not bind the Court.   STRASBOURG 31 March 2026       This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of X v. Georgia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Faris Vehabović , Acting President ,   Lado Chanturia,   Lorraine Schembri Orland,   Ana Maria Guerra Martins,   Anne Louise Bormann,   Sebastian Răduleţu,   András Jakab , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   35640/22) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national,   X (“the applicant”), on 19 July 2022; the decision to give notice of the application to the Georgian Government (“the Government”); the decision not to have the applicant’s name disclosed; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Centre for Advice on Individual Rights in Europe (the AIRE Centre), which was granted leave to intervene by the President of the Section; Having deliberated in private on 27 May 2025 and 10 March 2026, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application raises complaints under Articles 3, 8, and 14 of the Convention relating to the adequacy of the domestic legislative framework for combating sexual violence against children, the respondent State’s alleged failure to conduct an effective criminal investigation into allegations of child sexual abuse, as well as issues of secondary victimisation resulting from the manner in which certain investigative measures were taken. THE FACTS 2 .     The applicant was born in August 2005 and lives in Georgia. She was represented by Ms E. Lomtatidze, Ms T. Lukava and Ms B. Pataraia, lawyers practising in Tbilisi. 3.     The Government were represented by their Agent, Mr   B. Dzamashvili, of the Ministry of Justice. 4.     The facts of the case may be summarised as follows.         DOMESTIC PROCEEDINGS 5.     The applicant was less than 2 years old when her parents divorced in 2007. Shortly thereafter, T.K., the applicant’s mother, began to live with another man, K.E. (hereinafter “K.E.” or “the stepfather”), who moved in with them in an apartment in Tbilisi. In 2013 T.K. and K.E. had a child together, a daughter and half-sister to the applicant. 6 .     In the winter of 2019 T.K. travelled to the United States of America (USA) with the applicant and her half-sister for work reasons. Upon their return to Georgia in the spring of 2021 the applicant asked her mother for permission to visit her biological father and other paternal relatives in Poti and Khobi, located in the Samegrelo-Zemo Svaneti region of western Georgia. T.K. eventually agreed. 7.     In early May 2021, while visiting her paternal relatives in Khobi, the applicant confided in F.A., a young woman and her father’s cousin, about incidents of physical and sexual abuse that K.E. had allegedly subjected her to in their Tbilisi apartment in 2019. She also told F.A. that her mother had been unwilling to protect her from him. 8 .     F.A. immediately informed a relative, T.Q., who was a police officer. On 7 May   2021 T.Q. formally reported the alleged abuse to the police by calling the national emergency number. The case was then assigned to the Khobi District criminal police (“the Khobi police”) in the Samegrelo-Zemo Svaneti region, where the applicant was living at the time. On the same day an investigator from the Khobi police (“the Khobi investigator”), who had been trained in juvenile justice, launched a criminal investigation under Article   141 of the Criminal Code (indecent conduct towards a minor). 9 .     Later the same day the Khobi investigator interviewed both F.A. and T.Q., who relayed the information they had learned about the instances of physical and sexual abuse allegedly committed by the applicant’s stepfather between May and October 2019 (for further details, see paragraphs   12-15 and 18-20 below). According to the applicant, she was also interviewed by the Khobi investigator on the same day. However, the Government contested this claim, referring to the complete criminal case file, which indicated that the applicant’s first interview concerning her allegations occurred on 13   May 2021 (see paragraphs 12, 106 and 109 below). 10 .     On 9 May 2021 T.K. travelled to Khobi to speak to the applicant, after being formally informed by the Khobi investigator of the allegations she had made against K.E. The meeting was attended by F.A. and the investigator at the applicant’s request. During the conversation, as the applicant began describing the instances of sexual abuse by K.E., her mother started yelling at her, accusing her of lying and attempting to “destroy her relationship.” After witnessing T.K.’s verbal aggression, the Khobi investigator reprimanded her for refusing to listen to her daughter and issued a restraining order prohibiting her from approaching the applicant for thirty days. The investigator issued a second restraining order that day, forbidding K.E. from having any contact with the applicant for the same length of time. 11.     Subsequently, since the events constituting the alleged criminal offence had taken place in Tbilisi, the criminal investigation was transferred from the Khobi police to the Tbilisi criminal police (“the Tbilisi police”). 12 .     On 13 May 2021 a female investigator from Tbilisi (“the Tbilisi investigator”), who had been trained in juvenile justice, took over the criminal investigation. Her first step was to invite the applicant for an interview. As the applicant’s mother was forbidden by law from contacting her daughter (see paragraph 10 above) and her biological father had left Georgia and could not be located, the new investigator assigned an independent female social worker to act as the applicant’s legal guardian, in accordance with Article   50 §   1   (f) of the Juvenile Code (see paragraph   47 below). The investigator’s interview with the applicant, which was attended by her legal guardian and a female child psychologist, took place on 13   May 2021 in a secluded interview room specifically designed for that purpose at the Tbilisi police’s Juvenile Affairs Division. The investigator also suggested that a State-appointed lawyer attend the interview, but both the applicant and her legal guardian declined. The applicant’s interview transcript includes the following account. 13 .     She submitted that her stepfather had treated her rather well until 2018, when he had learnt that she, then 12 years old, had been having a romantic relationship with Sh.T., a 14-year-old boy. She had even lent the boy money once or twice without telling her parents. On learning of their relationship, K.E. had physically assaulted her, slapping her in the face and hitting her on various parts of her body, threatening her with further physical abuse if she did not stop seeing the boy and giving him money. Her mother, who had witnessed the assault on her (hereinafter “the 2018 incident”), had condoned her partner’s behaviour, believing that she needed to be disciplined. Subsequently, K.E. had started controlling her social life by regularly monitoring her mobile phone, emails and social media activity. He had also installed software on her mobile phone allowing him to track her movements using GPS. 14 .     The applicant further stated that the first time her stepfather had touched her inappropriately had been in May 2019, when she had been 13   years old. It had happened at night while she had been asleep in bed with her mother and little sister. K.E. had positioned himself between her and her mother. She had suddenly felt him slip his hand under her nightdress and start touching her stomach. She had felt startled and intimidated but had decided to pretend to be asleep. The next morning K.E. had acted as if nothing had happened. She had decided not to tell anyone about the incident, feeling unsure and ashamed. 15 .     The second time that K.E. had sexually abused her had been in early June 2019. It had happened in the early hours of the morning when only she and her stepfather had been at home. He had asked her to come into his bedroom and sit on his bed, and had then slid his hand under her T-shirt and started fondling her breasts. She had felt startled, defenceless and unable to move. K.E. had not gone any further with his inappropriate behaviour on that occasion. However, two weeks later, towards the end of June   2019, when her mother had again been out, he had made her watch him masturbate and ejaculate in the bathroom, telling her “this is what masturbation looks like”. He had then forced her to hold his penis in her hands, kissing her on her mouth and neck. 16.     The interview transcript confirms that the applicant, in response to an unknown question (the questions were not recorded in accordance with standard investigative interview practices), stated that she had felt disgusted and immediately wanted to run away from the bathroom. However, she had felt petrified by her stepfather’s actions. She added that one reason she had felt so intimidated had been the 2018 incident, which had made her afraid that K.E. would beat her again if she dared to speak up. 17.     It also appears from the interview transcript that she was apparently asked, by either the investigator or the psychologist, whether K.E.’s penis had been erect or soft when she had been holding it in her hands, and that she answered that it had been erect. 18 .     The applicant further stated that three further incidents of sexual abuse had occurred in July 2019. In the first incident, K.E. had briefly shown his penis to her at home while her mother had been in the next room. In the second incident, K.E. had asked her to get on her knees so that her forehead was level with his genitals. Lastly, towards the end of July, K.E. had offered to return the applicant’s mobile phone – which he had confiscated months earlier as part of his efforts to monitor her social life (see the circumstances surrounding the 2018 incident in paragraph   13 above) – if she agreed to show her genitalia to him. Additionally, in July 2019, K.E. had explicitly asked her not to tell anyone about “the things that [were] happening between them”, as it could “ruin their family life”. 19.     The applicant further stated that it had only been during her stay in the USA that she had been able to fully process her painful experiences, and that she had become determined to do everything possible to put an end to them. She had made initial attempts to talk to her mother, hinting at K.E.’s inappropriate behaviour, but her mother had refused to listen and always found excuses to avoid such difficult conversations. Consequently, unable to continue living under the same roof as K.E., the applicant had insisted on visiting her paternal relatives in Poti after their return to Georgia from the USA (see paragraph 6 above). 20 .     The applicant also stated that she had initially intended to tell her biological father about all the abuse she had endured at the hands of K.E. However, in the end, she had only confided in him about the 2018 incident in early May 2021, omitting any mention of the sexual abuse as she had felt ashamed. It had only been to F.A., her father’s cousin, a young woman with whom she had felt sufficiently comfortable, that she had confided her most intimate and painful experiences. She described in detail how she had confided in F.A., recalling all the emotions she had experienced throughout the process. She also remembered that, after speaking to F.A., she had called her maternal aunt in the USA and told her – albeit in less detail – about the sexual abuse she had suffered at the hands of K.E. 21 .     It appears from the interview transcript that the Tbilisi investigator asked her a number of questions – the exact wording of which is unknown due to the standard investigative interview practice of not recording them – which she answered as follows: “In reply to your respective question[s], I would like to repeat/clarify that: (i) K.E. subjected me to multiple acts of sexual abuse between early June and late July 2019; (ii) I have not informed anyone of this abuse until now for fear of retaliation by K.E., and also because I always knew that my mother loved him a lot and that she would never believe me ... (iii) I have never had sexual intercourse with K.E. or any other man; (iv) K.E. did not touch my genital organs but only fondled my breasts, nor did he ever ask me get naked or have sex with him; (v) when K.E. was fondling me, I did not want it to happen, no, but I could not resist because I remembered [the 2018 incident] and was therefore afraid of him; (vi) when I was living in the USA, I once confided in two of my classmates via Facebook Messenger ... about [the 2018 incident], and I even recall one of them commenting in reply that she remembered all too well having seen me with bruises at school.” 22 .     On 13 and 18 May 2021 the Tbilisi investigator requested a psychological evaluation and medical examination of the applicant, after informing both her and her legal guardian of the necessity of such examinations for a comprehensive investigation and obtaining their written consent. The questions put to the forensic medical experts suggest that the investigator sought to determine: (i) whether the applicant’s hymen was intact; (ii) if her hymen had been ruptured, the cause and timing of the rupture; (iii) any signs of ill-treatment on her body; and (iv) her psychological profile, including personality traits. 23 .     Before proceeding with several examinations, including gynaecological and other assessments, the medical experts, who were all women, briefed the applicant and her legal guardian of the nature of the medical procedures in question. They asked whether the applicant was truly comfortable with the proposed procedure and obtained additional consent from them. On the basis of those examinations, the experts concluded on 27   May 2021 that the applicant’s hymen was intact and that there were no visible signs of injuries on her body, including in the anal area. The psychologists’ detailed report on her personality, issued on 19   November 2021, indicated, among other things, that she did not generally exhibit a tendency to exaggerate when discussing painful experiences or other difficult subjects. In addition, she generally seemed to exhibit a maturity commensurate with her age and was able to assess various events adequately. 24 .     On 20 May 2021 T.K. was interviewed by the investigator as a witness. She stated that she did not believe her daughter’s accusations against K.E. at all and that if something like that had really occurred between her partner and daughter, she would have definitely noticed it. T.K. felt that her daughter had simply wanted to destroy their relationship because K.E. had been a strict but fair father to her, while she had become a very difficult person in her teenage years and had probably grown tired of K.E.’s discipline and wanted to hurt him. T.K. also suggested that her ex-husband’s relatives, particularly F.A., might have contributed to provoking the applicant to make such false accusations. She acknowledged that the 2018 incident had indeed taken place (see paragraph 13 above), but said that K.E. had never hit the applicant and had limited his reaction to scolding her for mixing with the wrong boys. T.K. also acknowledged that her partner had indeed monitored the applicant’s time spent on her mobile phone and social media. Lastly, in response to a question from the investigator, she stated that while there had been occasions when she and her two daughters had slept in the same bed in the children’s bedroom, she could not recall K.E. ever joining them. 25.     On 25 May 2021 K.E. was questioned by the investigator as a witness and denied the applicant’s accusations. He stated that he considered her to be his own daughter and had raised her as such since she had been a baby. Like T.K., he suggested that the reason behind the applicant’s false accusations might have been provocation by F.A. and her other paternal relatives. He further acknowledged, using similar language to that used by T.K. (see paragraph 24 above), that in 2018 he had scolded the applicant for having a relationship with a boy who had extorted money from her, but he denied having ever using physical force against her. K.E. also admitted that he had confiscated the applicant’s mobile phone for limited periods of time because she had been “literally addicted to screens”. He also stated, in response to a question from the investigator, that he had never slept in the same bed as either of his two daughters (see paragraph 14 above). 26 .     On 27 May 2021 the applicant, represented by F.A., who had by that time been appointed her legal guardian in place of the social worker (see paragraph 12 above) and continued to serve in that capacity throughout the remainder of the criminal proceedings, filed a complaint with the Prosecutor General’s Office (“the prosecution authority”), the authority overseeing the investigation conducted by the Tbilisi police, alleging that it was progressing at an unacceptably slow pace. She also requested to be formally declared a victim and for the prosecution authority to press criminal charges against K.E. for abuse without further delay. 27 .     By a decision of 28 May 2021, the prosecution authority rejected the applicant’s request for victim status, explaining that the investigation was still in its early stages and that further investigative measures needed to be taken. That decision was subsequently upheld by a senior prosecutor on 18   June 2021. 28 .     On 28 May 2021 the applicant, who was then represented for the first time by a lawyer of her choice (one of the lawyers representing her in the proceedings before the Court, see paragraph 2 above), submitted another request to the prosecution authority, asking for the addition of new and important evidence to the criminal case file. She explained that, after she had travelled to the USA in late 2019 (see paragraph 6 above), she had maintained communication with her closest friends and former classmates in Georgia through a closed Facebook Messenger group. It was in this group, which had seven members including herself, that she had shared certain details about the sexual abuse perpetrated by K.E. in April 2020. Although she had deleted all the messages exchanged in the group some time earlier for fear that K.E. would monitor her social media activity, she had recently learned that one of the group’s members, L.A., had saved screenshots of them. The applicant therefore requested that the relevant messages exchanged with her friends in 2020, obtained from L.A.’s Facebook account, be added as evidence to the criminal case file. 29.     On 31 May 2021 the applicant’s biological father, who had since returned to Georgia (see paragraph 12 above), was questioned by the Tbilisi investigator. He stated that his daughter had never told him that her stepfather had mistreated her in any way before her return from the USA. It had not been until early May 2021 that she had first told him that K.E. had used physical force against her, but she had not mentioned anything about being sexually abused at the time (see paragraph 20 above). He had only become aware of the situation after his cousin had reported the applicant’s accusations to the police. He also stated that, feeling she would be embarrassed by the topic, he had not dared discuss those painful experiences with her, for fear of causing further trauma. In response to a question from the investigator, he also said that he had never had a strained relationship with his ex-wife or K.E. and that, on the contrary, he had always tried to maintain a friendly relationship with them in order to see his daughter more often. 30 .     On 5 June 2021 the applicant was questioned again by the Tbilisi investigator, in the presence of her lawyer, regarding her request to the prosecution authority of 28 May 2021 (see paragraph 28 above). She reiterated all the circumstances surrounding the recovery of the messages she had exchanged with her six friends in April 2020 and asked the investigator to add those messages to the criminal case file as evidence. She also said that the sexual abuse had caused her depression and anxiety, and that she had even contemplated suicide at times. 31.     On 5 June 2021 a boy who lived in Khobi, with whom the applicant had recently become friends, was interviewed as part of the investigation. He stated that in May 2021 the applicant had confided in him that her stepfather had been inappropriately touching her in 2019. However, she had not shared any additional details with him about the incidents. 32 .     Between 8 and 11 June 2021 the Tbilisi investigator interviewed the applicant’s six former classmates and friends, including L.A., with whom she had shared messages concerning the alleged sexual abuse (see paragraph   28 above). All the girls interviewed confirmed that they had received messages from the applicant in April 2020 describing K.E.’s alleged actions (flashing his penis and masturbating in front of the applicant, fondling her breasts, and so on). L.A. added that she had saved screenshots of them on her mobile phone. Two other girls interviewed stated that they had never deleted the relevant group chat from Facebook Messenger and that it could still be viewed by logging into their Facebook accounts. All the girls also added, in response to questions from the investigator, that K.E. had been known to be obsessively strict with the applicant, monitoring and limiting her contact with her friends. Some of them also stated that they had seen the applicant come to school with bruises on her legs, hands and face. 33.     On 28 June 2021 the applicant’s lawyer requested that the investigator add to the case file the opinion of a private psychiatrist who had examined the applicant between 27 May and 20 June 2021. The opinion diagnosed the applicant with an anxiety disorder caused by psychological trauma, which it stated could, in principle, be related to previous sexual abuse. 34.     In the light of the statements given by the applicant’s six former classmates, the Tbilisi investigator seized the mobile phones of the three girls who had told her that they had kept records of the relevant Facebook Messenger chat (see paragraph 32 above). The investigator then commissioned a State forensic expert specialising in information technology to retrieve the messages. On an unspecified date in July 2021 the expert confirmed that the seized phones contained records of a Facebook Messenger chat from April 2020 between the applicant and her six friends (see paragraphs 28 and 32 above), in which the applicant had described the allegations of sexual abuse against her stepfather. The investigator also noted from the messages that the applicant had mentioned confiding in a boy, Sh.T., with whom she had been in a romantic relationship at the time (see paragraph   13 above). On 13 July 2021 the Tbilisi investigator interviewed Sh.T., who denied ever having been a close friend of the applicant or having heard from her about issues regarding her relationship with her stepfather. 35 .     On 31 July 2021 F.A. was questioned by the Tbilisi investigator again. She stated that she had new and important information that had not been known to her during the first interview (see paragraph 9 above). F.A. explained that after the applicant had started living with her in Khobi following the opening of the criminal investigation on 7 May 2021 and the issuance of restraining orders against T.K. and K.E. (see paragraph   10 above), their close relationship had grown stronger over time. The applicant had gradually opened up to her, describing several other instances of sexual abuse by K.E. In particular, there had reportedly been another incident in 2019 when he had pressed his erect penis against the applicant’s face. Furthermore, he had reportedly forced the applicant to watch pornographic videos with him on his computer when T.K. had been away from home. With regard to the May 2019 incident, when K.E. had slept in the bed between the applicant and T.K. (see paragraph 14 above), F.A. clarified that K.E. had in fact fondled the applicant’s genital area, not just her stomach, and had even inserted the tips of his fingers. The applicant had been too ashamed to share these exact details during her first interview with the investigator. F.A. also informed the investigator that the applicant had told her that K.E. had regularly harassed her verbally and physically, using derogatory insults and slapping her in the face, as well as punching and kicking her in the stomach, which had caused her to fear him. Lastly, in response to a question from the investigator, F.A. specified that she herself had never asked the applicant any additional questions about her painful past experiences for fear of further traumatising her, and that the applicant herself had over time felt the need to confide in her and provide the additional disturbing details. 36 .     On 10 August 2021 the applicant’s lawyer, appearing to refer to the information provided by F.A. (see paragraph 35 above), requested that the prosecution authority arrange a new interview with her client in order to obtain new important statements. She referred, in particular, to the recently discovered information about K.E. penetrating the applicant’s vagina with the tips of his fingers, which she argued could affect the classification of the offence of sexual abuse. The lawyer added that the interview should be conducted in accordance with the structured forensic interview protocol developed by the National Institute of Child Health and Human Development (NICHD) in the USA to ensure the quality of investigative interviews with children. She emphasised that this investigative technique was accepted worldwide and that there were child psychologists in Georgia trained in this forensic method, all of whom were affiliated with the Georgian Ministry of Public Health. On 10 September 2021 the prosecution rejected the lawyer’s request, noting that the applicant had already been interviewed twice in the presence of a child psychologist by investigators trained in juvenile justice, and that there was no need for an additional interview at that stage. 37.     On 23 February 2022 the applicant’s lawyer appealed to the Tbilisi City Court against the prosecution authority’s decisions of 28 May and 18   June 2021 (see paragraph 27 above) refusing to grant the applicant victim status. The lawyer argued that without the procedural status in question, the applicant would continue to be deprived of a number of important procedural rights, such as the ability to access the criminal case file. 38 .     On 9 March 2022 the Tbilisi City Court issued a final decision, dismissing the applicant’s appeal as unfounded. After reviewing the material available in the criminal case file, the court determined that the information gathered to date in the investigation “was not sufficient to establish with certainty that a criminal offence had been committed” against the applicant or that “she had suffered any harm”. Consequently, it concluded that the applicant could not be declared a victim. 39.     The case file contains no information indicating that any further investigative measures were undertaken thereafter.       PROCEEDINGS BEFORE THE COURT 40 .     The application form was lodged with the Court on 19 July 2022 by the applicant in person. Furthermore, she authorised, by her own signature, three lawyers to represent her interests before the Court, one of whom had already represented her at the domestic level (see paragraphs 2 and 28 above). 41.     On 30 May 2023, following the notification of the application to the Government, the latter informed the Court that the applicant, who was born on 1 August 2005, had been a minor at the time the application had been lodged. 42 .     On 12 July 2023 the applicant submitted a letter confirming her genuine interest in the proceedings before the Court and her intention to be represented by the three lawyers in question. 43.     On 16 October 2023 the Government informed the Court that the applicant had still not reached the age of majority at the time she had submitted the letter of 12 July 2023. 44 .     On 22 November 2023 the applicant submitted another letter to the Court, again confirming that the application reflected her personal and genuine will. She reconfirmed her interest in the proceedings and stated that she had duly authorised the three Georgian lawyers to act on her behalf. The letter was accompanied by new authority forms, all dated 22   November 2023 and signed by the applicant and the lawyers. RELEVANT LEGAL FRAMEWORK AND PRACTICE         DOMESTIC LAW AND PRACTICE    Juvenile Justice Code 45.     The Juvenile Justice Code, enacted on 12 June 2015, established a comprehensive legal framework governing the involvement of minors in proceedings related to both criminal and non-criminal (administrative) offences. It applies whether the minor is participating as an offender, a victim or a witness (Article 1). The age of majority is set at 18 (Article   3 §   1).      Participation of a minor in legal proceedings 46 .     Under Articles 3 and 10 of the Code, a minor may participate in legal proceedings either independently or through representation by a natural guardian (such as a parent) or a legal guardian (appointed by the competent authorities). Article 10 §§ 3 and 4 specify that the extent of an unrepresented minor’s decision-making capacity in legal proceedings must correspond to their mental and emotional maturity. In cases where a minor’s decision conflicts with that of their natural or legal guardian, the domestic authorities must carefully assess the situation and prioritise the decision that best serves the minor’s interests. 47 .     Under Article 50 § 1 (f), a competent domestic authority is authorised to appoint a legal guardian for a minor if his or her natural guardian is physically unavailable to provide assistance.      Issues relating to the secondary victimisation of a child victim 48.     Article 1 § 2 of the Code states that one of its purposes is to “prevent the secondary victimisation” of child victims. 49.     Articles 15 § 1 and 16 § 1 provide that child victims of sexual offences are entitled to free legal aid at any stage of the proceedings. Additionally, all procedural measures involving child victims of criminal offences, whether during the investigation or trial, must be taken by specially trained professionals. 50.     Under Article 23 § 1 and Article 29 § 2, a child victim of a criminal offence is entitled to support from a child psychologist, who must also be present during all procedural measures involving him or her. 51.     Article 52 contains special rules for interviewing minors and provides as follows.   A minor victim or witness may be interviewed if he or she is capable of conveying information relevant to the case, either orally or by other means.   In cases involving sexual offences, audio or video-recordings may be made of interviews and the recorded testimony may be played at court hearings.   The number of interviews with a minor victim or witness must be kept to a minimum, and additional interviews are permitted only when necessary for a thorough and objective investigation.   A minor may not be questioned between 8 p.m. and 8 a.m.   During interviews, a minor must be provided with adequate food and water at least every four hours and have unrestricted access to toilet facilities.     Interviews with a child victim must be attended by his or her natural or legal guardian and may also (optionally) be attended by a child psychologist.   It is strictly prohibited to conduct an interview with a minor victim in the presence of a parent or any other adult accused of abusing him or her.    Criminal prosecution of sexual offences 52 .     Chapter XXII of the Criminal Code, which criminalises various forms of sexual offences, consists of five distinct legal provisions (Articles   137 to 141). Based on their wording and authoritative legal commentaries interpreting the constituent elements of these crimes, the provisions can be understood as follows.    Article 137 – Rape (penetrative sexual assault ) 53 .     Article 137 defines rape as follows: “1. Rape, that is, any form of sexual penetration into a person’s body using any part of the body or object, committed with violence, under the threat of violence, or by taking advantage of the victim’s helplessness, shall be punishable by six to eight years’ imprisonment ...” 54.     The offence encompasses all non-consensual forms of vaginal, oral or anal penetration involving a penis, other body parts or objects. It applies exclusively to penetrative acts; non-penetrative sexual violence is covered under a separate provision (see paragraphs 61 to 63 below). 55 .     Full penetration is not required to establish the offence. The depth of penetration is immaterial – any degree of penetration, however slight, constitutes the element of the crime. Penetration of the labia majora or the anal opening is sufficient to qualify as rape. Evidence of ejaculation or physical traces of penetration is not necessary to prove the act. 56.     A perpetrator may be of any sex or gender, and victims may also be of any sex or gender. Perpetrators are not limited to strangers; they may include individuals in positions of trust or authority over the victim, such as spouses or intimate partners, parents, stepparents, foster parents, police officers, guards or officials in detention facilities, teachers, employers, medical professionals, caregivers for the elderly or infirm, or tour guides. 57 .     Victims may belong to particularly vulnerable categories, such as minors, which constitutes an aggravating factor leading to harsher penalties. Article   137 § 4 (c) specifies that the rape of a minor carries a prison sentence of fifteen to twenty years. 58.     The definition of violence under Article 137 appears to be limited to physical force. However, physical force should be interpreted according to its plain and ordinary meaning. The level of violence used does not need to meet a specific threshold, such as excessive or life-threatening force, for the act to be considered criminal. Proof of violence does not require visible physical injuries or evidence of physical resistance from the victim. 59.     The threat of violence includes mental intimidation aimed at coercing the victim through the potential use of physical force. The threat does not need to be immediate; a future threat still constitutes an element of the crime. It does not have to be explicit and may be conveyed through words, actions or a combination of both. The perpetrator does not need to carry out the threat or even have the ability to do so – what matters is that the victim believes the threat is real and realisable. 60 .     Helplessness, as a legal element of rape, is understood as incapacity. It applies to individuals who are physically unable to give consent or who cannot comprehend the situation owing to their mental state. Under domestic legal interpretation, a person may be considered helpless if, at the time of the crime, they were incapacitated owing to factors such as drug or alcohol use, unconsciousness, sleep, illness, injury or age-related impairments.    Article 138 – Sexual assault (non-penetrative acts) 61 .     Article 138 defines the offence as follows: “1. Any other act of a sexual nature that does not contain the elements of a crime under Article 137 ... committed with violence, under the threat of violence, or by taking advantage of the victim’s helplessness shall be punishable by four to six years’ imprisonment ...” 62.     This provision covers acts of a sexual nature that do not involve penetration (for the definition of a penetrative sexual offence, see paragraph   55 above). The key distinction between Articles 137 and 138 is that Article 138 applies to non-consensual, non-penetrative physical contact of a sexual nature, whereas Article 137 applies to penetrative non ‑ consensual sexual violence. The remaining elements of this crime should be interpreted in the same manner as those outlined in Article 137. 63 .     Under Article 137 §§ 3 and 4, which list the aggravating factors, non-penetrative sexual acts committed against a minor between 14 and 18   years old are punishable by eleven to fifteen years’ imprisonment, while such acts committed against a minor under 14 years old carry a prison sentence of fifteen to twenty years.    Article 139 – Sexual abuse (both penetrative and non-penetrative) 64 .     Article 139 defines the offence as follows: “1. Forcing a person to perform sexual penetration or other acts of a sexual nature, committed under the threat of property damage, disclosing defamatory information, revealing details of [the person’s] private life, or any other information that may significantly affect the person’s rights, and/or by taking advantage of the victim’s helplessness or material, official or other dependence shall be punishable by up to five years’ imprisonment ...” 65.     This offence encompasses all the elements of the crimes under Articles   137 and 138, applying to both penetrative and non-penetrative non-consensual sexual acts. However, unlike Articles 137 and 138, it does not involve physical violence or the threat of physical violence as a means of subjugation but rather coercion by psychological means, such as pressure, manipulation, intimidation or blackmail. 66.     Similar to Articles 137 and 138, Article 139 includes provisions for vulnerable victims, such as minors, as an aggravating factor. In such cases, the punishment is more severe, with imprisonment ranging from nine to fifteen years (Article 139 § 4). 67 .     A number of domestic and international criminal law experts have criticised Article 139 for being redundant, arguing that it reinforces the controversial notion that rape always involves physical force and undermines the concept of affirmative consent. A scholarly debate is ongoing at the domestic level regarding whether Articles 137 and 138 should be broadened to encompass acts currently covered by Article 139.    Article 140 – Sexual penetration of a minor 68.     Article 140 proscribes the following offence: “Sexual penetration by an adult of a person under the age of 16 shall be punishable by seven to nine years’ imprisonment.” 69.     The offence involves engaging in penetrative sexual intercourse with a minor, regardless of consent. The key difference between this offence and those under Articles 137 to 139 is therefore the element of consent. For the purposes of Article 140, it is irrelevant whether or not the minor consents, as the primary focus is on the victim’s age. 70.     All other elements of the crime (such as the definition of penetration, the sex of the perpetrator and the victim, and so on) are consistent with the characteristics of the offence of rape under Article 137 (see paragraphs   55-57 above). 71 .     Domestic legal commentaries on Article 140 concur that if a context ‑ based investigation determines that the act was non-consensual (either legally or factually), the perpetrator should be charged with either rape (Article   137) or sexual abuse (Article 139), depending on whether physical force or the threat of physical force was used to achieve sexual gratification. 72.     Some domestic legal commentaries on Article 140 highlight frequent challenges in assessing consent and coercive circumstances in cases involving minors.    Article 141 – Indecent conduct towards a minor 73 .     Article 141 states: “Indecent conduct by an adult towards a person under the age of 16 shall be punishable by five to nine years’ imprisonment.” 74.     This offence covers all other forms of sexual activity, regardless of consent, involving a child, including both contact offences – such as sexual touching of any part of the child’s body, whether clothed or not, or forcing the child to undress or touch someone else – and non-contact offences – such as exposing oneself, flashing, showing pornography or forcing a child to participate in sexual activity or conversations online). 75 .     Similarly to Article 140 (see paragraph 71 above), if a context-based investigation reveals that the indecent conduct was committed against the