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Dalida Rittossa: STRENGTHENING THE RIGHTS OF SEXUALLY ABUSED CHILDREN IN... 529
UDK 343.541:341.645(4-67EU)
Original scientific paper
STRENGTHENING THE RIGHTS OF SEXUALLY
ABUSED CHILDREN IN FRONT OF THE EUROPEAN
COURT FOR HUMAN RIGHTS A TALE OF
JUSTICE, FAIRNESS AND CONSTANT NORMATIVE
EVOLUTION∗
Dalida Rittossa, PhD, Assistant Professor
University of Rijeka, Faculty of Law
Hahlić 6, Rijeka, Croatia
dalida@pravri.hr
ABSTRACT
In recent years, numerous studies have focused at the phenomenon of child sexual abuse (here-
inafter, the CSA) oering valid conclusions about its phenomenological structures, etiological
causes and impact on victims and society as a whole. Although the bulk of research has fur-
thered our understanding of dierent aspects of CSA, scientic work that would focus on child
victims’ rights from constitutional and criminal law perspective is still scarce. Seeking to ll the
noted gap, the author presents the rst academic study on standards for protection of sexually
abused children’s rights set by the European Court for Human Rights (hereinafter, the ECtHR
or the Court). Relaying on Faye Jacobsen set of blended methodologies, 10 judgments related to
protection of rights of sexually victimised children are retrieved from the HUDOC system and
analysed in detail. A special attention has been paid to safeguards and guarantees under the
Article 3 and 8 of the Convention as well as their critical evaluation with respect to already
established constitutional legal solutions. e qualitative analysis has revealed that judicial
activism in the Strasbourg Court case law has been for years a driving force to enhance the
protection of sexually abused children, and that today, this protection has signicantly evolved,
forming a concept of particularly vulnerable victims and child-sensitive approach within the
context of child friendly justice. Although the evolutive line of the scope and content of CSA
protection standards created by the Court can be noted, judicial reasoning techniques behind
their development are susceptible to criticism.
Keywords: child sexual abuse, the European Court for Human Rights, development of nor-
mative standards, protection of child victim’s rights, vulnerability
* is work has been fully supported by the University of Rijeka under the project number [uni-
ri-drustv-18-86]. e article also presents preliminary research results of the Croatian Science Founda-
tion project “Life in the Time of COVID-19 - Social Implications on the Security and Well-Being of
Vulnerable Groups in the European Context”
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530
1. INTRODUCTORY REMARKS THE PHENOMENON OF CHILD
SEXUAL ABUSE AND THE NEED FOR MORE
SPECIFIC RESEARCH
In scientific and general community, a widely accepted consensus exists that CSA
is a highly negative social phenomenon with multiple long and short-term conse-
quences. Sexual crimes against children are considered as one of the most serious
and heinous prohibited behaviours that eclipse all other crimes.1 Once the crime is
discovered, the awareness of it deeply convulses a community. In most cases, there
is a strong need not to acknowledge the incident or to believe that such cases are
separate, individual excesses which usually happen to someone else. Recent stud-
ies have shown that broader societal denial of the scope of the problem, together
with other negative factors, may induce embarrassment, stigma, and fear that can
silence victims and dissuade members of their family from reporting the offence.2
Not surprisingly, the infringement of child’s sexual integrity has been, therefore,
vailed with secrecy and disavowal for years. In the last 1970s, the social silence
was broken by humanitarian organizations, for instance the UN, UNICEF and
the WHO, and women movements that begun to draw attention to the CSA and
correlated social problems such as interpersonal violence and social violence and
the magnitude of their impact on women and children. A number of studies soon
followed questioning the abuse and sexual exploitation of children from numer-
ous standpoints trying to estimate its phenomenological extent and occurrence
variations as well as etiological characteristics.3 Due to the bulk of research in the
field of criminal law, medicine, medical health, psychology, sociology, the CSA
turned out to be “the most researched form of child maltreatment”.4
Almost five decades of empirical and theoretical research has broadened our
knowledge about different aspects of CSA and offered a valid basis for framing
comprehensive social policies. According to numerous studies, subjecting children
to sexual acts may cause a wide range of psychological and interpersonal prob-
lems as well as immediate and long-term detrimental health consequences. Vic-
1 Adler, A., e Perverse Law of Child Pornography, Columbia Law Review, vol. 101, no. 2, 2001, pp.
227 – 228
2 Azzopardi, C. et al., A Meta-Analysis of the Prevalence of Child Sexual Abuse Disclosure in Forensic Set-
tings, Child Abuse & Neglect, vol. 93, no. 2, 2019, p. 292
3 Bidarraa, Z. et al., Co-Occurrence of Intimate Partner Violence and Child Sexual Abuse: Prevalence, Risk
Factors and Related Issues, Child Abuse & Neglect, vol. 55, no. 2, 2016, pp. 10 –11
4 Ajduković, M. et al., Gender and Age Dierences in Prevalence and Incidence of Child Sexual Abuse in
Croatia, Croatian Medical Journal, vol. 54, 2013, p. 470
Dalida Rittossa: STRENGTHENING THE RIGHTS OF SEXUALLY ABUSED CHILDREN IN... 531
tims of CSA can experience anxiety problems,5 depression,6 post-traumatic stress
disorder,7 aggression and substance abuse.8 e suicidality is also associated with
sexual abuse during the childhood. Angelakis and a group of authors highlighted
that their comprehensive metanalytical research showed a clear causal connection
between CSA and suicidal ideation and suicide attempts in adult survivors.9 e
list of negative consequences is not exhausted, and different studies revile that
CSA presents a significant potential for revictimization later in life,10 unwanted
pregnancy and poor overall health.11 Although research conclusions on CSA may
vary in scientific literature due to inconsistent CSA definitions, methodological
issues like use of retrospective studies or official criminal justice statistics, the CSA
professionals mutually agree that we are dealing with a serious, pervasive, world-
wide phenomenon, a sort of social continuance that can be found throughout
the years in different cultures and among different social groups. erefore, the
protection of victims’ rights should be positioned at the forefront of human rights
policies.
2. METHODOLOGICAL ATTRIBUTES AND
CONCEPTUALISATION OF THE RESEARCH SAMPLE
Although the growth associated with CSA research has increased in both the quan-
tity and the quality, scientific analysis of child victims’ rights and adequateness of
relevant criminal offences from a legal perspective fall behind. e same trend can
be noted in Croatian research community. e systematic literature research us-
ing the Hrčak and Heinonline electronic databases revealed that only five scientific
articles scrutinising the criminal justice responses to CSA were published in Croa-
tian scientific journals between 1993 and 2020, none of them focusing on the EC-
5 Manigliol, R., Child Sexual Abuse in the Etiology of Anxiety Disorders: A Systematic Review of Reviews,
Trauma, Violence & Abuse, vol. 14, no. 2, 2013, p. 96
6 Judgement D.P. & J.C. v. the United Kingdom (2003)
7 Hébert, M. et al., Agression sexuelle et violence dans les relations amoureuses: Le rôle médiateur du stress
post-traumatique, Criminologie, vol. 50, no. 1, L’agression sexuelle commise sur des mineurs: les vic-
times, les auteurs, 2017, p. 160
8 Domhardt, M. et al., Resilience in Survivors of Child Sexual Abuse: A Systematic Review of the Literature,
Trauma, Violence & Abuse, vol. 16, no. 4, 2015, p. 482
9 Angelakis, I. et al., Childhood Maltreatment and Adult Suicidality: A Comprehensive Systematic Review
with Meta-Analysis, Psychological Medicine, vol, 49, 2019, p. 1060
10 Walker, H. et. al., e Prevalence of Sexual Revictimization: A Meta-Analytic Review, Trauma, Violence
& Abuse, vol. 20, no. 1, 2019, p. 75
11 Hilden, M. et al., A History of Sexual Abuse and Health: A Nordic Multicentre Study, BJOG: an Interna-
tional Journal of Obstetrics and Gynaecology, vol. 111, 2004, p. 1126
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES (ECLIC) – ISSUE 4
532
tHR practice.12 However, legal researchers specialising in theoretical conceptuali-
sation and practical analysis of the ECtHR jurisprudence have long acknowledged
the significance of this Court. According to Letnar Černič, the Strasbourg Court
was transformed “from Sadurski’s “benign paradox” to a fully-fledged human
rights court addressing the most heinous human rights violations”.13 e Court
has evolved into the largest judicial entity in the world with a clear international
profile and Court’s judgments have had a significant influence over the national
legislation and court practice. Moreover, when certain legal issues are subjected to
close scrutiny and involved in a heavy debate, the Court influence may overpass
its jurisdictional boundaries and may be used as an argumentation tool in other
human rights systems, and additionally, in the global human rights discourse.14
Children rights advocates have also recognised the ECtHR influence as a crucial
factor in children’s rights development. Even though in recent years the increase is
noted in number of published scholarly works dedicated to the ECtHR case law,
to the best of author’s knowledge, this is the first academic study looking into the
standards for protection of sexually abused children’s rights set by the Court.
Having all this in mind, the aim of this study is, first of all, to research the preva-
lence of CSA cases in front of the ECtHR. Using the quantitative methodology,
we will reveal the number of cases that reached the Court in Strasbourg and were
adjudicated from criminal justice perspective. Moreover, the qualitative linguistic
analysis will identify how the Court reasoning, in interpreting the Convention,
has created the scope and content of CSA protection standards, which should
be implemented in criminal justice systems operating in the state parties to the
Convention. e final goal of the current study is to identify evolving trends in
defining these standards, and with critical scrutiny, to explore whether the new
standards, e.g. the concept of vulnerability and child-sensitive approach, erode
12 Kovčo Vukadin, I., Organizirani kriminalitet: pedolija i prostitucija, Hrvatski ljetopis za kazneno pra-
vo i praksu, vol. 5, no. 2, 1998, pp. 641 – 679; Kovco Vukadin, I., Stigmatizacija počinitelja seksualnih
delikata, Zbornik Pravnog fakulteta Sveučilišta u Rijeci, vol. 24, no, 2, 2003, pp. 819 – 842; Radić,
I.; Radina, A., Zaštita od nasilja u obitelji: obiteljskopravni, prekršajnopravni i kaznenopravni aspekt,
Zbornik radova Pravnog fakulteta u Splitu, vol. 51, no. 3, 2014, pp. 727 – 754; Rittossa, D., Seksualni
delikti na štetu djece: hrvatski kaznenopravni okvir kroz prizmu zahtjeva iz Direktive 2011/93/EU, Hr-
vatski ljetopis za kaznene znanosti i praksu, vol. 25, no. 1, 2018, pp. 29 – 63; Rittossa, D., Kažnjavanje
počinitelja najtežih seksualnih delikata na štetu djece u RH: zakonski okviri i postojeća sudska praksa,
Hrvatski ljetopis za kaznene znanosti i praksu, vol. 25, no. 2, 2018, pp. 417 – 445
13 Letnar Černič, J., Impact of the European Court of Human Rights on the Rule of Law in Central and
Eastern Europe, Hague Journal on the Rule of Law, vol. 10, 2018, p. 113 citing Sadurski, W., Partnering
with Strasbourg: Constitutionalisation of the European Court of Human Rights, e Accession of Central
and East European States to the Council of Europe, and the Idea of Pilot Judgments, Human Rights Law
Review, vol. 9, no. 3, 2009, p. 409
14 Procaccini, K., C., Constructing the Right Not to Be Made a Refugee at the European and Inter-American
Courts of Human Rights, Harvard Human Rights Journal, vol. 22, no. 2, 2009, p. 273
Dalida Rittossa: STRENGTHENING THE RIGHTS OF SEXUALLY ABUSED CHILDREN IN... 533
already established doctrinal institutes in ECtHR jurisprudence, e.g. the margin
of appreciation. e quantitative and qualitative methods present a simplified ver-
sion of Faye Jacobsen set of blended methodologies to explore children’s rights in
the ECtHR practice in a wider context.15
In order to apply the first nominated research method, HUDOC database was
searched using a keywords’ search strategy. e keywords “child”, “sexual abuse”,
“sexual assault”, “criminal offence” and “crime” were carefully chosen to build the
query given that the enumerated keywords are the most cited key terms in research
papers on CSA. Bearing in mind all the factors that may impact the formulation
and the execution of the query to retrieve cases from the HUDOC system, the
terms from the list of keywords were used individually as well as in combination
for coding. After the exclusion of irrelevant and repeated cases, the query in the
HUDOC database revealed that there have been 10 judgments related to protec-
tion of sexually abused children’s rights,16 3 of them holding that there was no
violation of the Convention17 and remining 7 confirming the violation of relevant
Convention Articles.18
e research results clearly indicate that the child protection against sexual abuse
has not been an issue that dominates Court’s adjudication processes. It seems that
the discourse related to child’s rights not to be sexually abused that had surfaced
in international policies and human rights movements almost half a century ago
did not substantially reflect on the ECtHR case law. e first application related
to child victim’s rights in a sexual abuse case had been lodged with the European
Commission of Human Rights on 12 February 1997, and almost 2 years later
15 Faye Jacobsen, A., Children’s Rights in the European Court of Human Rights – An Emerging Power Struc-
ture, International Journal of Children’s Rights, vol. 24, 2016, pp. 548 – 574
16 e case of Z and Others v. the United Kingdom (2001) was not included within the research sample
due to the fact that the case concerned overall ill-treatment of four child applicants who had suffered
appalling neglect over an extended period and physical and psychological abuse directly attributable
to a violent criminal offense. Two of them had also shown signs of sexual abuse but the judgment is
silent on the issue of its nature and intensity. Moreover, the inclusion criteria were not met in case of
X and Y v the Netherlands (1985) bearing in mind that the central issue was whether the Netherland’s
criminal justice system offered the protection against sexual abuse of persons with mental difficulties
over the age of 16, a criminal offence not belonging to the category of sexual offences against children.
In K.U. v. Finland (2009), the ECtHR concluded that online bullying of 13-year-old boy had made
him a target for approaches by paedophiles, and therefore, amounted to invasion of his private life
under Article 8 of the Convention. Due to the nature of violation, the case in question was left out of
the research sample
17 Judgement A and B v. Croatia (2019); M.P. and Others v. Bulgaria (2012); D.P. & J.C. v. the United
Kingdom, op. cit., note 6
18 Judgement M.S. v. Ukraine (2017); M.G.C. v. Romania (2016); Y. v. Slovenia (2015); O’Keee v. Ire-
land (2014); Söderman v. Sweden (2013); C.A.S. and C.S. v. Romania (2012); M.C. v. Bulgaria (2004)
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES (ECLIC) – ISSUE 4
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transmitted to the Court.19 e second case, M.C. v. Bulgaria, had originated in
an application by the end of the same year, and reached the Court’s agenda a year
later.20 In 2005, the ECtHR received another application raising several com-
plaints alleging repeated rape of a seven year old boy21 and in next 10 years all the
other cases followed.
Although the small number of ECtHR decisions concerning the CSA cases might
be expected due to the procedural constraints imposed by the principle of sub-
sidiarity originating from Article 35 § 1 of the Convention,22 the scarcity of the
case law confirms that criminal justice reports underestimate the CSA prevalence.
e significant number of cases remain unreported, and therefore, unknown to
state’s prosecutorial bodies. Moreover, reporting incidences of CSA depends on a
set of diverse and interrelated factors emerging from political, societal and cultural
currents. As the judges in dissent in O’Keee v. Ireland rightly pointed out, the
silence creates the major difficulty in investigating sexual child abuse.23 Even if the
case is successfully reported, a pathway that leads to the ECtHR might be paved
with problems and obstacles. In the era of child right’s industry, children are still
predominantly seen as sub-human or not-yet-fully-human and their rights are de-
fined in terms of care, needs and special protection. While depending on parents,
guardians, family members, educators and state agents, children are entitled to
rights which do not have the same power strength as those recognised to adults.24
Due to the absence of specific constitutional provisions and provisions within the
Convention acknowledging children’s rights, these rights are largely “invisible”.25
It is of no surprise that children rarely have a status of applicant before the EC-
tHR.26
19 Judgement D.P. & J.C. v. the United Kingdom, op. cit., note 6
20 Judgement M.C. v. Bulgaria, op. cit., note 18
21 Judgement C.A.S. and C.S. v. Romania, op. cit., note 18
22 e scope of the Article 35 is to promote and establish the subsidiarity of the ECtHR case law to
national law. e states have obligation to protect human rights defined in the Convention first and
foremost within their own legal systems. By reading the Article 35 in conjunction with Article 13, it
comes to the view that it is the obligation of the state to provide an effective remedy at the national lev-
el for violation of Convention rights before the involved citizen has to find a recourse in international
machinery of applications with the ECtHR
23 Joint partly dissenting opinion in O’Keee v. Ireland, op. cit., note 18
24 Alderson, P., Children’s rights and power, in: Jones, S., (ed.) 30 Years of Social Change, London, Phila-
delphia, 2018, p. 81
25 Collins, T. M., International Child Rights in national Constitutions: Good Sense or Nonsense for Ireland,
Irish Political Studies, vol. 28, No. 4, 2013, p. 594
26 Faye Jacobsen, op. cit., note 15, p. 553
Dalida Rittossa: STRENGTHENING THE RIGHTS OF SEXUALLY ABUSED CHILDREN IN... 535
Bearing in mind that children generally have to count on others to present their
claims and represent their interests, the Court has rejected the restrictive, technical
approach in interpreting the position of children as individual applicants under
Article 34 of the Convention. According to the Court, any serious issues vis-à-vis
respect for child’s rights, comprising the right to an effective investigation into the
sexual abuse, should be examined.27 Children’s representation in national court
and ECtHR proceedings is, without any doubts, highly necessary, however, at the
same time, it might enfeeble the power of child participation rights with respect
to access to courts and court proceedings. In order to ameliorate the unavoidable
dichotomy, the power and relationship between children and adults have to be put
in the right balance especially if there is a risk of invoking child’s rights in instru-
mental way. e qualitative analysis of the ECtHR judgments recognising rights
of sexually abused children will show whether the standards set by the Court have
offered such a valid solution or simply disregarded the necessity to moderate sexu-
ally abused children’s rights in accordance with higher constitutional principles of
fairness and justice.
3. THE ECTHR CASE LAW CRUCIAL POINTS FOR THE
PROTECTION OF RIGHTS OF SEXUALLY VICTIMISED
CHILDREN
3.1. Convention Rights Violations and Discourse on State Obligations in CSA
Cases
A detailed analysis of the CSA cases discussed in front of the ECtHR has revealed
that the attack on sexual integrity of a child may present a violation of prohibition
of torture (Article 3)28 or right to respect for private and family life (Article 8)29 or
both30 and in certain cases the right to an effective remedy (Article 13).31 Accord-
ing to Article 3, “no one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”32 e legal construct behind the cited article demands
a mandatory and complete elimination of acts that violate the right to personal
integrity and dignity of an individual. In legal doctrine and court practice the
complete and mandatory wording has been transformed in a mutual consensus
27 Judgement M.S. v. Ukraine, op. cit., note 18
28 Judgement O’Keee v. Ireland, op. cit., note 18
29 Judgement M.S. v. Ukraine, op. cit., note 18; Söderman v. Sweden, op. cit., note 18
30 Judgement C.A.S. and C.S. v. Romania, op. cit., note 18; M.C. v. Bulgaria, op. cit., note 18; M.G.C. v.
Romania, op. cit., note 18; Y. v. Slovenia, op. cit., note 18
31 Judgement D.P. & J.C. v. e United Kingdom, op. cit., note 6; O’Keee v. Ireland, op. cit., note 18
32 Article 3 ECHR
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES (ECLIC) – ISSUE 4
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that the rights under Article 3 are erga omnes rights that have absolute and non-
derogable nature even in situations of emergency, such as war, threat of war, ter-
rorism or similar public danger menacing the life of the nation.33 Consequently,
the prohibition of torture may not be overpassed with measures curtailed under
the principle of proportionality and balancing of state and individual interests,
nor can it be subjected to derogation under Article 15 or constructed according
to victim’s status. e highest level of protection associated with the rights envis-
aged in Article 3 derives from firm standing that these rights reflect “fundamental
values of the democratic societies making up the Council of Europe“.34
e normative parameter of freedom from ill-treatment as to Article 3 refers to
various forms of conduct divided in three different cohorts depending on their
gravity. e torture should cover the most atrocious forms of ill-treatment while
lesser gravity is expected in case of inhuman and degrading treatment. e Court
has established a notable practice on determining what kind of maltreatment falls
within the specific Article 3 category, and in view of the firmly rooted principle in
its case law that the Convention “is a living instrument which must be interpreted
in the light of present-day conditions”,35 forged the rule that prohibited acts could
be classified differently in future as to increase the standards of protection of Ar-
ticle 3 rights.36 No matter the considerable attention given to these issues in its
previous practice, the Court is silent as to defining the nature of CSA and evaluat-
ing its severity according to the three-tier scale of Article 3 prohibited forms of
ill-treatment. e Court is confident that serious acts such as rape and other forms
of sexual abuse of children, including sexual battery, present a direct attack on fun-
damental values, and consequently, fall within the ambit of Article 3.37 A glimpse
of indications of severity test could be found in O’Keeee v. Ireland when Court
concluded that 20 sexual assaults on 9 year old victim administered by her teacher
in 6 month period amount to ill-treatment within the scope of Article 3.38 Due to
the fact that this was not contested, the Court did not engage in further scrutiny
33 Škorić, M., Obiteljsko nasilje u praksi Europskog suda za ljudska prava s posebnim osvrtom na presude
protiv Republike Hrvatske, Hrvatski ljetopis za kaznene znanosti i praksu, vol. 25, no. 2, 2018, p. 394
34 Mowbray, A., Cases, Materials, and Commentary on the European Convention on Human Rights, Oxford
University Press, Oxford, 2012, p. 195
35 According to the partly dissenting opinion of Judge Serghides in Khlaia and Others v. Italy, the Con-
vention as a living instrument principle, together with the principle of effectiveness, has formed the
“bedrock” of Court’s evolutive interpretation
36 Separate opinion of Judge Serghides in Judgment Volodina v. Russia (2019), § 4; Al-Saadoon and
Mufdhi v. e United Kingdom (2010), § 119; Concurring opinion of Judge Villiger in Davydov and
Others v. Ukraine (2010); Hénaf v. France (2004), § 55; Öcalan v. Turkey (2005), § 193-194; Selmouni
v. France (1999), § 101
37 Judgement A and B v. Croatia, op. cit., note 17, § 110
38 Judgement O’Keee v. Ireland, op. cit., note 18
Dalida Rittossa: STRENGTHENING THE RIGHTS OF SEXUALLY ABUSED CHILDREN IN... 537
whether the assaults amount to torture, inhuman or degrading treatment. is is
particularly surprising given that the lack of particular assessment is contrary to
the Court’s position that “the right to human dignity and psychological integrity
requires particular attention where a child is the victim of violence”.39
Non-derogable and absolute nature of the Article 3 rights has placed them at the
top of the hierarchy scale of Convention rights. Scholars predominantly agree that
the Court has created a well-established practice according to which the prohibi-
tion of Article 3 ill-treatments is an absolute right in all its applications, and to
invoke its protection, the threshold of severity has to be met.40 If the violation
of personal integrity of a child does not amount to severity needed under this
threshold, the CSA may constitute a violation of the right to respect for private life
under Article 8, which is, as to its interpretative character, a less protected right.
erefore, there should be a clear margin of severity between the CSA acts that
present a breach of Article 3 and Article 8. However, the analysis has showed that
there is a complete absence of this normative distinction in ECtHR jurisprudence.
While in certain cases the Court explicitly reiterates that the acts of sexual abuse
of a child undoubtedly meet the threshold of Article 3, the explanation why there
is a need to consider it as well as a privacy violation is unfortunately missing.41
Moreover, the Court has applied two different approaches with respect to its rea-
soning. In certain cases, the factual and legal substrate is analyzed in a separate
part of the judgment dedicated solely to Article 3 and solely to Article 8.42 In
more recent decisions, the Court has abandoned the clear-cut analysis due to the
fact that boat provisions are assessed simultaneously under the presumption that
the violation of child’s sexual integrity might present at the same time a breach of
Articles 3 and 8 of the Convention. One of the possible explanations for this phe-
nomenon could be related to Court’s recent policy of benefiting the children and
the other vulnerable members of society from state protection where their physi-
cal and mental well-being are threatened.43 In order to strengthen child rights
protection, the Court in Strasbourg has departed from previous canons of Article
3 and Article 8 division and developed a double clause strategy. Although the
recent shift in judicial reasoning techniques is justified by the rule requiring that
39 Judgement A and B v. Croatia, op. cit., note 17, § 111; C.A.S. and C.S. v. Romania, op. cit., note 18, §
82
40 Omejec, J., Konvencija za zaštitu ljudskih prava i temeljnih sloboda u praksi Europskog suda za ljudska
prava, Strasbourški acquis, Zagreb, 2013, p. 912
41 Judgement C.A.S. and C.S. v. Romania, op. cit., note 18, § 73
42 Judgement D.P. & J.C. v. e United Kingdom, op. cit., note 6; Y. v. Slovenia, op. cit., note 18
43 Guide on Article 8 of the European Convention on Human Rights, Right to Respect for Private and Family
Life, Home and Correspondence, Council of Europe, European Court of Human Rights, Strasbourg,
2019, p. 13
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES (ECLIC) – ISSUE 4
538
the Court is master of the characterization to be given in law to the facts of the
case, the noted approach has not gained an unconditional support from human
rights professionals. e Strasbourg Court was criticized for a lack of transparent
guidance, consistency in ruling and interpretative confusion.44 Except for noted
practical and theoretical implications, the Court decision whether to examine the
CSA complaints under Article 3, Article 8 or both normative provisions, reflects
on the typology and scope of state’s positive obligations to protect children from
sexual abuse.
With respect to prohibition of outrages upon personal integrity and dignity of
a child, the state has a negative obligation to sustain from inflicting harm on
children under state control (e.g. in detention centres, social welfare institutions,
schools, hospitals or in other state institution).45 Although in recent years much
of attention is given to CSA at the institutional level, there is not a single case in
which the ECtHR has found the breach of state’s negative obligations to refrain
from ill-treatment. According to the ECtHR case law, the sexual abuse of children
predominantly occurs in relationships between individuals not involving the state.
e traditional understanding of human rights invoking state commitments of
negative character, therefore, has been completely disregarded in Strasbourg ju-
risprudence related to CSA and prohibition of child ill-treatment. Furthermore,
demanding standards on state parties were imposed in the area of positive obliga-
tions to protect children from sexual assaults at the hands of private actors. In a
certain number of decisions, the Court has concluded that Article 3 imposes an
obligation upon states to take protective measures in order to prevent subjecting
persons within their jurisdictions to ill-treatment even if the ill-treatment is ad-
ministrated by private individuals.46 Besides, the adoption of effective measures
in the sphere of the relations of individuals between themselves can be rightfully
expected from a state as to comply with the positive obligations arising from Ar-
ticle 8.47 e vertical and the horizontal effects are both, hence, embodied within
the Article 3 and 8 of the Convention. If the state fails to implement measures in
order to prevent offenders from committing sexual offences against children or
to reply to, investigate and remedy the sexual abuse that already happened, the
failure for not taking necessary steps leads to state’s responsibility for the violation
of the Convention.
44 O’Mahony, C., Child Protection and the ECHR: Making Sense of Positive and Procedural Obligations,
International Journal of Children’s Rights, vol. 27, 2019, p. 668-669
45 Judgment Blokhin v. Russia (2016)
46 M.C. v. Bulgaria, op. cit., note 18; Y. v. Slovenia, op. cit., note 18
47 X and Y v. the Netherlands, op. cit., note 16; See also Buxton, R., Private Life and the English Judges,
Oxford Journal of Legal Studies, Vol. 29, No. 3, 2009, p. 413
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3.2. e Adequacy of Legal Framework to Protect Children from CSA
A wide variety of measures might be appropriate to fulfil state’s duty to secure pro-
hibition of ill-treatment of children and respect for their private life. Depending
on the issues covered within the particular CSA case, states enjoy different levels
of margin of appreciation in protecting and guaranteeing children’s right not to
be sexually abused. e margin of appreciation doctrine, according to scholars, is
an important tool to reach consensus on level of rights’ protection and appropri-
ateness of state positive obligations when legal traditions and cultures interact or
collide.48 While we have to share the unanimous conclusion that rights from the
Convention are universal human rights recognised throughout Europe, national
differences in standards of their protection are acceptable if are within the mar-
gin allowed to the state. e idea behind the doctrine of margin of appreciation
when positive obligations are concerned has been to recognise a certain amount
of state discretion in deciding on the means of protection according to state’s
constitutional values and legal traditions. If asked to act and develop a policy, the
states should enjoy some leeway.49 Unfortunately, the Court’s review process does
not offer a clear guidance on what is the precise amount of state’s discretion. e
noted ambiguity may cause uncertainty about what is exactly expected from the
state parties to comply with the obligation, however, a rule - the more important
right or freedom the narrower margin of appreciation, might shed some light on
this issue.
e above mentioned rule should have been taken into account in M.C. v. Bulgar-
ia, a leading case on state’s positive obligations in CSA situations in the Strasbourg
case law. e case involved an applicant who alleged that she had been raped by
two men two months before her 15th birthday. After two and a half years of crimi-
nal investigation, the case was officially closed due to insufficient evidences to con-
clude that sexual intercourses were unwilling and committed by threats or force.
According to the applicant, Bulgarian law and practice in rape cases were defective
due to the fact that victim’s active resistance was a key condition to prosecute the
offenders. Defective prosecutorial and court jurisprudence taken together with the
ineffective investigation in her own case amounted to a violation of state’s positive
obligation to protect her physical integrity and private life. e Court acknowl-
edged that states undoubtedly enjoy a wide margin of appreciation when decid-
ing about the means to adequately protect individuals against rape within their
jurisdiction bearing in mind that means have to be defined according to cultural
48 Gerards, J., Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human
Rights, Human Rights Law Review, vol. 18, 2018, p. 498
49 Lemmens, K., e Margin of Appreciation in the ECtHR’s Case Law. A European Version of the Levels of
Scrutiny Doctrine?, European Journal of Law Reform, vol. 20. no. 2-3, 2018, p. 90
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factors, local circumstances and traditional approaches.50 Although we can expect
divergent national standards in the area of rape protection, the Court’s conclusion
not to narrow state’s margin of appreciation is problematic for different reasons.
First of all, it contradicts its own conclusion that in this particular case, the fun-
damental values and essential aspects of private life are at stake, and consequent-
ly, effective deterrence against rape demands effective criminal law provisions.51
One of the basic principles of the doctrine of criminal law is a position that in a
democratic society criminal law serves as a last resort in order to protect certain
constitutional value, i.e. the ultima ratio societatis principle. e criminal law and
application of sanctions are, therefore, the exact implementation of the state’s ius
puniendi. Consequently, in cases involving the state’s positive obligations within
the criminal law normative framework, the margin of appreciation has to be nar-
row. Moreover, the constraints on the doctrine of margin of appreciation have
to be imposed in order to apply more intensive review. ere should be a greater
clarity in ECtHR review standards involving the state’s criminal law provisions
especially if the provisions refer to children and other vulnerable individuals en-
titled to effective protection. e stronger scrutiny has to be applied also in case if
the provisions are assessed under Article 3 of the Convention. We have to bear in
mind that the margine of appreciation doctrine will be abandoned in most Article
3 cases due to the absolute and non-derogable nature of rights arising from that ar-
ticle. However, the theoretical position on the margin of appreciation applicability
in the ambit of child applicant’s rights under the Convention was not followed
in M.C. v. Bulgaria case. Due to the fact that there was no clear demarcation line
between the alleged rape as a violation of Article 3 or Article 8 rights, the Court’s
standard of review, which should have elucidated the margin of appreciation doc-
trine, seems a quite ambiguous and incomplete.
e above detected problems relate to the general uncertainty that rules over the
positive obligation standards in ECtHR case law. e role of causation presents
another issue, which adds to the ambiguity flowing from the Court’s practice. In
order to find the link between the harm suffered by the 14 year old applicant and
Bulgarian government’s omissions, the ECtHR has relied on the significant flows
test. According to the Court, its task was to scrutinize “whether or not the im-
pugned legislation and practice and their application in the case at hand, combined
with the alleged shortcomings in the investigation, had such significant flaws as
to amount to a breach of the respondent State’s positive obligations under Articles
50 Judgment M.C. v. Bulgaria, op. cit., note 18, § 154
51 Judgment M.C. v. Bulgaria, op. cit., note 18, § 150
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3 and 8 of the Convention.”52 In another words, in order to confirm a breach in
state’s positive obligations, the Court has to establish significant, not ordinary,
common or more expected flaws, errors and omissions, in national legislation and
its application. Although the introduction of the significant flaws test could have
meaningfully illuminated state’s liability for omissions under the Convention, the
Court’s assessment related to the test rests here. As Lavrysen rightfully concluded,
the notion of significant flows in the remaining paragraphs of the judgment was
not used, nor it was revealed what had to be understood by this notion.53 e
Court has simply concluded that positive obligations arising from Article 3 and
8 were not met because the lack of resistance by the applicant was transformed
in the defining element of the rape offence and because the investigation was not
conducted in a context-sensitive but rather restrictive manner.54 e wording of
the norm itself was not problematic, but in fact the issue arose from its interpreta-
tion by prosecuting authorities. Consequently, the M.C. v. Bulgaria ruling does
not oblige state parties to the Convention to criminalise rape in a pure volunta-
ristic sense but rather to relinquish the criminal prosecution practice built on evi-
dence of victim’s resistance. e core of judicial review outcome in this particular
case has been wrongly interpreted many times and manipulatively used in no-
means-no debate in the national legislation area, which led to new doctrinal and
practical problems and a lowering of standards on protection of sexually abused
victims.55 It seems that the absence of precise guidelines on causation by omission
when criminal legislation is invoked is a result of Court’s simple assumption that
criminalisation of rape contributes to better protection of human rights.56
52 Judgment M.C. v. Bulgaria, op. cit., note 18, § 167. e significant flaw test was also used in the
M.G.C. v. Romania judgment, op. cit., note 18, § 60
53 Lavrysen, L., No ‘Signicant Flaws’ in the Regulatory Framework: E.S. v. Sweden and the Lowering of
Standards in the Positive Obligations Case-Law of the European Court of Human Rights, Human Rights
& International Legal Discourse, vol. 7, no. 1, 2013, pp. 153-154
54 Judgment M.C. v. Bulgaria, op. cit., note 18, § 177, 182
55 No matter the warnings from scholarly contributions which have confirmed certain negative outcomes
of voluntarist conception of sexual offences in legal theory and court practice, in 2019 Criminal Code
Amendments the Croatian legislator has introduced the new definition of offence of rape. e rape
is now identified with the offence of non-consensual sexual intercourse from Article 152 §1 of the
Criminal Code previously in force, and consequently, the act of rape consists of any sexual intercourse
or a sexual act equated with sexual intercourse without victim’s consent. For more information related
to the offence of rape in Croatian criminal law doctrine and court practice, see Vuletić, I.; Šprem, P.,
Materijalnopravni aspekti kaznenog djela silovanja u hrvatskoj sudskoj praksi, Policija i sigurnost, vol. 28,
no. 2, 2019, pp. 130-155; Rittossa, D.; Martinović, I., Spolni odnošaj bez pristanka i silovanje – teorijski
i praktični problemi, Hrvatski ljetopis za kazneno pravo i praksu, vol. 21, no. 2, 2014, pp. 509-548
56 Stoyanova, V., Causation between State Omission and Harm within the Framework of Positive Obligations
under the European Convention on Human Rights, Human Rights Law Review, vol. 18, 2018, pp. 343-
344
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In accordance with the principle od subsidiarity, state parties have a primary re-
sponsibility to secure the rights and freedoms under the Convention, and there-
fore, the national legal framework, as it was demonstrated in M.C. v. Bulgaria,
should provide efficient criminal law provisions to address the sexual abuse of
children. In less serious cases of violation of psychological integrity the civil law
remedy may suffice. Nevertheless, what if a repugnant act was not covered by any
criminal or civil law norm and the question of effectiveness cannot be imposed
because the norm simply does not exist? e Court has resolved the dilemma in
Söderman v. Sweden.owever, Ho57 e case involved applicant’s allegations that the
Swedish legal system did not provide measures to protect her against stepfather’s
actions who covertly tried to film her in a bathroom while she was undressing be-
fore taking a shower for sexual purposes. At the time of the incident, the applicant
was 14 years old. e Court reiterated that the acts in question had constituted a
violation of the applicant’s personal integrity. She was affected in highly intimate
aspects of her private life as to considerable aggravated circumstances (the appli-
cant was a minor, the incident had taken place in her family home, the offender
was a person whom she was entitled and expected to trust), and therefore, the
Court departed from the standing in M.C. v. Bulgaria and concluded that the
margin of appreciation allowed to the state was narrower.58 Moreover, the Stras-
bourg Court also decided to partially reject the significant flaw test. While the test
is considered to be “understandable in the context of investigations, (it) has no
meaningful role in an assessment as to whether the respondent State had in place
an adequate legal framework in compliance with its positive obligations under
Article 8 of the Convention since the issue before the Court concerns the ques-
tion of whether the law afforded an acceptable level of protection to the applicant
in the circumstances.”59 e acceptable level of protection was the new standard
that replaced the significant flaw test, but again, no additional guidelines were
provided by the Court, either as to the determination of its particular criteria, or
as to the assessment of the exact level of burden on the state. Is the test another
in casu constitutional standard related to positive obligations or decisive criterion
generally applicable in CSA cases, the answer to this question solely depends on
Court’s judicial activism and creativity in cases that will fallow.60
57 Judgment Söderman v. Sweden, op. cit., note 18
58 e same approach was applied in the M.S. v. Ukraine, op. cit., note 18, § 59
59 Judgment Söderman v. Sweden, op. cit., note 18, § 79, 86, 91
60 e acceptable level of protection test was a starting point of the Court’s interpretative journey in
Škorjanec v. Croatia (2017) and Irina Smirnova v. Ukraine (2017). In the latter case, the ECtHR
applied the test while assessing the adequacy of Ukrainian non-criminal legal framework to provide
protection against intrusions on applicant’s privacy and enjoyment of home
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3.3.
e Eectiveness of the Legal Framework Implementation in Practice
As it was shown in the above presented text, Article 3 and 8 of the Convention
place fairly demanding obligations upon national authorities to prevent, replay
to, investigate and remedy the infringement of sexual integrity of children. e
procedural layer has been added to the scope of the right to personal integrity
and dignity and the right to private life as to erode the procedural injustice that
applicants may encounter while seeking protection in national justice systems.
Except from fulfilling substantive positive obligations, the states, therefore, have
to establish procedural safeguards against unfairness in the course of a judicial
procedure. e effective deterrence against sexual abuse of children goes hand
in hand with the effective investigation of CSA complaints in order to achieve a
coherent, meaningful and comprehensive protection for the rights of children not
to be sexually abused. In C.A.S. and C.S. v. Romania the ECtHR has pointed out
that the right to an effective official investigation into the alleged sexual abuse of a
child extends to cases in which the abuse has been inflicted by private individuals.
e Court has also offered specific explanations what elements have to be fulfilled
in order to have an “effective” investigation. e inquiry is regarded as an effec-
tive if “capable of leading to the establishment of the facts of the case and to the
identification and punishment of those responsible. is is not an obligation of
result, but one of means.” 61 e core issue in the procedural obligation of effective
investigation concerns the manner and length of conducting the investigation, not
the final result.62 No one hast the right to demand from state agents to prosecute
a specific individual and to conclude the investigation and court proceedings with
a conviction judgment. e Court’s focus is always been on maintenance of a
proper standard of protection.
In the light of the principle that positive obligations should not impose excessive
burden on the state parties to the Convention, the Court has restated in a number
of cases that the procedural authorities are under obligation to take reasonable
steps available to them to secure the evidence regarding the incident including but
not limited to eyewitness testimony, forensic evidence etc.63 e standard of rea-
sonableness, hence should be interpreted within the margin of national criminal
procedural justice and in the light of available evidence. e ECtHR has a sub-
61 Judgment C.A.S. and C.S. v. Romania, op. cit., note 18, § 69, 70
62 Stoyanova, V., Due Diligence versus Positive Obligations: Critical Reections on the Council of Europe
Convention on Violence against Women, in: Niemi, J.; Peroni, L.: Stoyanova, V. (eds.), International
Law and Violence Against Women: Europe and the Istanbul Convention, 2020, [https://ssrn.com/
abstract=3384607], accessed 15. April 2020
63 Judgement A and B v. Croatia, op. cit., note 18, § 108; C.A.S. and C.S. v. Romania, op. cit., note 18, §
70; M.S. v. Ukraine, op. cit., note 18, § 63; Y. v. Slovenia, op. cit., note 18, § 96
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES (ECLIC) – ISSUE 4
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sidiary role in assessing evidence and no power to replace the procedural authori-
ties in the evaluation of the facts of the case. e Court’s scrutiny is, first of all,
focused on the question whether the procedural steps taken to obtain and evaluate
evidence amount to shortcomings in the investigation prohibited under the pro-
cedural aspect of a certain right. Current research has acknowledged that in most
CSA cases the signs of child abuse are unclear and the only direct evidence of the
crime will be the child statement.64 is could pose a problem bearing in mind
that the truth-seeking system generally prefer direct evidence to circumstantial ev-
idence.65 erefore, it is no surprise that the Court acknowledged that the national
authorities had been faced with a difficult task while conducting the investigation.
It cannot be contested that CSA cases are embroiled with sensitivity often arising
from conflicting versions of events, inconclusive expert opinions and nonexistence
of physical evidence supporting either the applicant’s or alleged offender’s version
of the events.66 However, the Court’s recognition of difficulties in investigating
and prosecuting sensitive matters is not used as a basis for applying more lenient
approach to the effectiveness of the investigation when procedural obligations are
concerned. In Y. v. Slovenia the Court precisely stated that in case of allegations
under Article 3, a particularly thorough scrutiny has to be applied, even if certain
domestic proceedings and investigations have already taken place.67 e exercise
of investigation powers by state authorities and officers must therefore be sub-
jected to strict scrutiny for compliance with procedural standards arising from the
freedom from ill-treatment. Bearing in mind that the fundamental importance of
the privacy rights under Article 8 is to a certain extent diminished with respect to
Article 3, the standard of review for procedural requirements implicit in Article 8
should be less demanding.
e analysis of Court’s decisions in CSA cases has showed that the clear distinc-
tion between the standards of review related to Article 3 and Article 8 is unfortu-
nately missing. For example, in C.A.S. and C.S. v. Romania the Court held that
the national judicial authorities’ lack of effort to weigh up the conflicting evidence
and establish the facts by engaging in a context-sensitive assessment in a case in-
volving sexual violence against a 7 year old boy augmented to failure to carry
out an effective investigation. Additional factors influencing the Court’s decision
were related to the fact that the investigation had not started promptly, nor was
64 Harlin Goodno, N., Protecting Any Child: e Use of the Condential-Martial-Communications Privi-
lege in Child Molestation Cases, University of Kansas Law Review, vol. 59, no. 1, 2010, p. 25
65 Heller, K. J., e Cognitive Psychology of Circumstantial Evidence, Michigan Law Review, vol. 105, no.
2, 2006, p. 255
66 Judgement A and B v. Croatia, op. cit., note 17, § 127; Y. v. Slovenia, op. cit., note 18, § 97
67 Judgement Y. v. Slovenia, op. cit., note 18, § 96
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conducted in a reasonable time. ree weeks passed before medical examination
of the boy was ordered and additional 2 months before an official statement was
taken from the main suspect. After 5 years, the procedural authorities officially
closed the investigation, and 7 years after the incident, the alleged offender was
exonerated. To much weight was given to the fact that boy’s family had not im-
mediately reported the offences and, to a certain extent, that he had hesitated in
reporting the abuse. e investigation was neither prompt, nor rigorous or child
sensitive bearing in mind the length of the procedure and domestic authorities’
failure to understand vulnerability and psychological reactions of sexually abused
children.68 While Court’s judicial reasoning was created upon factual interpre-
tation and terminology related to procedural effectiveness, sensitivity and child
vulnerability, contemporary constitutional standards regarding the procedural ob-
ligations inherent in Article 3 and Article 8 were simply merged and left without
any particular clarity of the judicial review. e standards of review are even less
understandable if we compare a highly similar language used in M.S. v. Ukraine
where the Court held that insufficiently thorough inquiry burdened with a 2 year
delay in securing the statement of allegedly abused child, unjustified number of
decisions discontinuing investigation and excessively lengthy proceedings has only
constituted a violation of Article 8.69
e general uncertainty that clouds judicial review standards concerning the pro-
cedural obligations can be noted in other CSA cases discussed in front of the EC-
tHR. e restrictive approach in the prosecution of rape of a 14 year old girl the
Court in Strasbourg proved relaying on reasonable arguments and a lack of Gov-
ernment’s disproval in M.C. v. Bulgaria.70 Consequently, the less demanding stan-
dards of reasonable grands were applied during the assessment of both Article 3
and Article 8 procedural obligations, which is, again, contradictory to the logic of
Court’s reasoning on “thorough scrutiny”, the stricter standard of review than the
reasonableness test.71 e omissions in investigation like domestic court’s inability
to assess all the surrounding circumstances (i.e. evidences on environmental coer-
cion, credibility of defence witnesses), to attach enough weight to the particular
vulnerability of sexually abused child and handle the investigation without sig-
nificant delays led the ECtHR to conclude that Bulgarian criminal justice system
was defective and fell short of the requirements of effective investigation and pros-
ecution of CSA cases. Similarly, a predominant practice of not making content-
68 Judgment C.A.S. and C.S. v. Romania, op. cit., note 18, § 78-81
69 Judgment M.S. v. Ukraine, op. cit., note 18
70 Judgement M.C. v. Bulgaria, op. cit., note 18
71 For more information on different layers of strict scrutiny test and reasonable grounds test, see Sinnar,
S., Rule of Law Tropes in National Security, Harvard Law Review, vol. 129, no. 6, 2016, p. 1605
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sensitive assessment of the evidence in CSA cases in Romania was declared to be
a breach of positive obligations inherent in Article 3 and 8 in M.G.C. v. Romania,
another groundbreaking case. In the ambit of domestic courts’ practice, a failure
to take into consideration chid-specific relations to trauma and sensitively assess
the fact that the victim did not disclose the abuse to her parents or did not scream
for help during the incident presents a direct breach of Romania’s positive obliga-
tions under both Articles 3 and 8.72 Although blurring the standards of review
is a point of contention, the Court’s judgments are illuminating for the task of
child-sensitive assessment, the positive obligation standard forged in the ambit of
research conclusions in the child psychology and depth and rigour of the criminal
justice assessment.
A certain pathway which will lead us closer to more clarity on the judicial review
standards in Article 3 and 8 procedural obligations might offer the case of Y. v.
Slovenia.73 e case concerned allegations of sexual assaults on a 15 year old girl
by a 40 year older family friend. A number of longer periods of complete inactiv-
ity, some of which were contrary to the domestic procedural rules, together with
the excessive length of the proceedings were used as a factual basis for the Court
to conclude that procedural obligations under Article 3 were not fulfilled. e
Article 8 of the Convention was invoked in relation to completely different issue
– the protection of the applicant’s personal integrity in the criminal proceedings.
e violations of Article 3 were related to the “classical” procedural issues while
allegations of a breach of Article 8 concerned facts that are specific to the personal
integrity within the privacy domain. e judicial reasoning in Y. v. Slovenia is,
therefore, more consistent with the canon of legal certainty. is was possible due
to the fact that for the first time in its practice, the Court in Strasbourg examined
the right to respect for private life and child victim’s personal integrity in the con-
text of the manner in which the victim had been questioned during the criminal
proceedings. e normative substance of victim’s Article 8 rights was observed
in the light of procedural safeguards guaranteed to the accused abuser under Ar-
ticle 6 §3 (d). Although the Court’s scope was “to strake a fair balance” between
these rights,74 no balancing test was performed. While scrutinising the domestic
criminal proceedings, the ECtHR accepted the conclusion that the right to a fair
trial had required an opportunity for the accused to cross-examine the applicant,
a young woman at the time of questioning, bearing in mind that her testimony
had been the only direct evidence and other gathered evidence, conflicting. e
personal cross-examination by the accused was not in and of itself a violation of
72 Judgment M.G.C. v. Romania, op. cit., note 18, § 70
73 Judgment Y. v. Slovenia, op. cit., note 18
74 Judgment Y. v. Slovenia, op. cit., note 18, § 104
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victim’s Article 8 rights but the manner of questioning raised a serious concern.
e length of questioning of 4 trial hearings over 7 months and quality of ques-
tions aimed at attacking the applicant’s credibility and degrading her character
were a primary cause of distressing experience for the applicant. In the presence of
risk of further traumatisation of the victim, domestic courts had to, but failed, “to
subject personal cross examination by the defendant… to most careful assessment,
the more so the more intimate the questions are… Cross-examination should
not be used as a means of intimidating and humiliating witnesses… It was first
and foremost the responsibility of the presiding judge to ensure that respect for
the applicant’s personal integrity was adequately protected at the trial.”75 Relay-
ing on research conclusions related to secondary victimisation of sexually abused
victims, the Court has extended the procedural obligation of national courts to
apply the sensitive approach to the conduct of the criminal proceedings involving
child victims and witnesses. Factors that created particular sensitivity and called
for additional procedural authorities’ actions were the pre-existing relationship
between the applicant and the victim, her young age at the time of the offence and
the intimate nature of the subject matter. Once again, the judicial activism of the
Court was rooted in interdisciplinary research outcomes, and consequently, the
judicial discretion in Y. v. Slovenia was limited as it may be by rigour of scientific
argumentation.
3.4. e Historic v. Activist Approach
Professional and academic research results were of crucial importance to create
the Court’s guiding principles of state’s responsibility to ensure the protection of
children from sexual abuse in the primary education system under Article 3 of the
Convention in O’Keee v. Ireland. Relying on 4 different reports revealing statisti-
cal evidence of prosecutions and complaints made to state authorities about the
CSA in Ireland, the Court acknowledged that the state was aware of the level of
sexual offences against children and the risk of sexual abuse within the educational
settings if there was no appropriate mechanism of their protection back in 1973.
e conclusions were part of the causation test and determination whether the
state had, or ought to have had, knowledge of the risk of sexual abuse of children
by teachers in the National Schools, and whether the state, being aware of the
risk, took reasonable steps and applied effective measures to protect children from
such risk. While affirmatively answering both questions, the O’Keee v. Ireland
judgment stands out in the Court’s case law for couple of different but interrelated
reasons. First of all, this is the only Strasbourg Court’s decision that concerns a
75 Judgment Y. v. Slovenia, op. cit., note 18, § 106; 108-109
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general risk of sexual abuse to unidentified children.76 ere was no dispute that
the applicant in the age of 9 had been subjected to approximately 20 sexual as-
saults for around 6 months by the principal of a primary school run by the Catho-
lic Church. She complaint that the state had failed to organise its primary educa-
tion system to ensure protection of children from ill-treatment. Furthermore, the
risk was assessed from the point of view of facts and standards existing in 1973.
e judicial reasoning was built on cannons of historical interpretation as a sign
of fairness bearing in mind the fact that the level of public awareness in society
today of CSA in educational institutions is considerably higher that it was at the
material time.
e factual and legal context of the O’Keee v. Ireland has attracted a consider-
able scientific attention and the judgment was subjected to the critical analysis
in a short time. Although the outcome of the case was not disputed, scholars
have argued that the holding was to broad and that it created uncertainty in the
interpretation of inherent positive obligations.77 In the light of the fact that risk
of CSA does not have to be real and immediate, the causation standard is broader
than the one in the context of protective positive obligations from earlier Court’s
practice,78 and it is left quite unclear why Ireland should have known of the risk in
the National Schools. e above mentioned official reports were concerned with
the widespread nature of the CSA in Ireland, however, none of them referring to
the case of conviction from the 1920s to 1973 in which a primary school teacher
was found guilty for sexually assaulting a pupil.79 e criticism is consistent with
research findings according to which most of the alleged abuse occurred between
the 1950s and the mid-1970s, nevertheless, national investigations emerged in the
past 3 decades.80 Furthermore, the Court’s methodology in historical interpreta-
tion raised concern vis-à-vis the historical application of the Convention. e
Court’s reasoning suffers from serious flaws due to the fact that the Court referred
to international documents as a source of Ireland’s obligations in 1973 that were
76 O’Mahony, op. cit., note 44, p. 669
77 Lee, H., O’Keee v. Ireland: e State’s Obligation to Protect Children from Sexual Assault in State Schools,
Boston College International and Comparative Law Review, vol. 40, no. 3, 2017, p. 39
78 Gallen, J., O’Keee v Ireland: e Liability of States for Failure to Provide an Eective System for the
Detection and Prevention of Child Sexual Abuse in Education, e Modern Law Review, vol. 78, no. 1,
2015, p. 158
79 Keane, R., O’Keee v. Ireland in Strasbourg: Punishing the Guilty, Dublin University Law Journal, vol.
38, no. 1, 2015, p. 187
80 Gallen, J., Jesus Wept: e Roman Catholic Church, Child Sexual Abuse and Transitional Justice, Interna-
tional Journal of Transitional Justice, vol. 10, 2016, p. 335
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ratified in 1989.81 e Convention was not interpreted by majority as understood
in 1973 and as then in force. At that time, there was no relevant case law to sup-
port the majority’s view of the scope and nature of positive obligations at issue.
For example, the hypothesis on vulnerability, its nature and gradation across the
spectrum of Convention rights, has been invoked in the doctrinal discussion and
ECtHR case law in last 2 decades. Although the universal fairness demands im-
posing obligations on states to ensure protection of children from ill-treatment
in a primary education through the adoption of detection and reporting mecha-
nisms, particularly when the abuser exploits authority over the child, the cost
of confirming such positive obligations should not be lowering the standards of
judicial review. As judges in dissent pointed out, “the standards of today based on
experience up to today are not necessarily how conduct in the past is fairly to be
judged.”82
A clear example of the evolutive outcome of judicial review standards is the last
year’s judgment of the ECtHR A and B v. Croatia. Unlike the O’Keee v. Ireland,
the judgment is not preoccupied with the past, rather it stands out as potentially
the most coherent Court’s decision that illuminates a substantive nature of sexu-
ally abused children’s rights under the Convention and their reach and practical
recognition in regard to positive obligations of the state parties and the Court it-
self. In its 6 decades of practice, the Court for the first time issued a request to the
Bar Association of a member country for appointment of a separate representative
to overcome a strong risk of invoking the rights of the applicant child in an in-
strumental way by her parents who were in a mutual conflict and incompetent to
protect the best interest of their child. e representative was trusted with the task
to duly present child’s views and interests due to the fact that the alleged abuser
of a 4 year old girl was her father. Although the Convention nor the Rules of the
Court regulate the issue who should represent the child under such circumstances,
the Court has decided to fill the lacuna with ad hoc solution relying on the rel-
evant European rules within the context of child friendly justice.83 e concept of
child friendly justice is a normative umbrella that merges rules from different legal
81 In his concurring opinion, Judge Ziemele has warned the majority that two International Human
Rights Covenants (i.e. the ICCPR and the ICESC) were adopted in 1966, Ireland signed them in 1973
and ratified them even later, in 1989
82 Joint partly dissenting opinion in O’Keee v. Ireland, op. cit., note 18
83 Art. 24 of the Council Directive 2012/29/EU establishing minimum standards on the rights, support
and protection of victims of crime [2012] OJ L315/57; Article 31 § 4 of the Convention on the Pro-
tection of Children against Sexual Exploitation and Sexual Abuse (Konvencija Vijeća Europe o zaštiti
djece od seksualnog iskorištavanja i seksualnog zlostavljanja), Official Gazette, International Agree-
ments, No. 11/2011, 13/2011, 15/2011; Section D, 2, 37, 42-43 of the Guidelines of the Committee
of Ministers of the Council of Europe on Child-Friendly Justice
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branches and positions them in a comprehensive normative unity guided under
the principles rooted in international child rights framework in order to adopt
judicial and state administrative system to the specific rights, interests and needs
of children. Under this concept, the child is perceived as a rights holder rather
than a mere object of protection and care,84 and justice is afforded to children
according to their best interest, “an interpretative principle of superior judicial
consideration”.85
In A and B v. Croatia the Court examined 3 important issues. e first issue
demanded an exhaustive analysis of Croatian regulatory and legal framework to
protect the applicant child’s rights guaranteed under Article 3 and Article 8 of the
Convention. Next, the Court was concentrated on the concrete application of the
framework with respect to procedural obligations of effective investigation. e
final Court’s task required a meticulous assessment of state authorities’ conduct in
order to conclude whether applicant’s rights as a child victim of sexual abuse were
sufficiently taken into consideration. e enumerated issues present an essence of
standards of children’s rights protection form sexual abuse created over the years in
ECtHR jurisprudence. Except form the fact that the Court examined everything
what was possible to examine within the boundaries set by the application, the
Strasbourg judicial authority clearly stated that “in cases of sexual abuse children
are particularly vulnerable”.86 is is an intriguing novelty having in mind that in
previously delivered CSA judgments the Court’s statements on vulnerability were
wrapped in general rhetoric about “children and other vulnerable individuals”.
A common presumption has been that the youngest members of society belong
to vulnerability or particular vulnerability group, nevertheless, the exact mean-
ing and effects of its gradation as well as repercussions on other classical ECtHR
institutes like the issue of causation have never been reviled. In A and B v. Croatia
the Court clearly reiterated that investigative bodies have a duty to implement
the criminal law mechanisms to address “the particular vulnerability of the ap-
plicant as a child of a young age, who had allegedly been a victim of sexual abuse
by her father, taking the child’s best interests as a primary consideration and in
this connection to afford protection to her victim’s rights and avoid secondary
victimisation”.87 As a result, the assessment tool for evaluation of state authorities’
84 Liefaard, T., Child-Friendly Justice: Protection and Participation of Children in the Justice System, Temple
Law Review, vol. 88, no. 4, 2016, p. 906
85 Mazzinghy, A., Child-Friendly Justice behind Bars: A Comparative Analysis of the Protection Mechanisms
of the Rights of Arrested Children in the Practice of the Working Group on Arbitrary Detention and of the
European and Inter-American Courts of Human Rights, American University International Law Review,
vol. 35, no. 2, 2020, p. 325
86 Judgement A and B v. Croatia, op. cit., note 17, § 111
87 Judgement A and B v. Croatia, op. cit., note 17, § 121
Dalida Rittossa: STRENGTHENING THE RIGHTS OF SEXUALLY ABUSED CHILDREN IN... 551
diligence in conducting the investigation was a three-step test that focuses on cul-
pable disregard, discernible bad faith and a lack of will on the part of investigative
or prosecuting agents. e test was already applied in M.P. and Others v. Bulgaria
7 year earlier,88 however, this time, the Court has extended its application merging
it with the standard of reasonableness and the best interest principle. According
to the Court, “the domestic authorities did everything that could have reasonably
been expected from them to protect the rights of the applicant, a child allegedly
victim of sexual abuse, and to act in her best interest”.89 In the Court’s reasoning, it
is clearly visible the tension between the child-centred approach supported by the
institute of vulnerability and the best interest principle on the one hand, and, on
the other, the standard of reasonableness, a more lenient causation standard which
goes in line with the margin of appreciation doctrine. It seems that judicial activ-
ism in Strasbourg is considerably limited with political constraints which demand
not strict but rather a reasonable implementation of ECtHR standards no matter
the value of the right protected under the Convention.
4. FINAL REMARKS
In recent years much has been said about the role given to the ECtHR in chal-
lenging endeavour of creating the pathway to universal recognition of basic hu-
man rights. e bulk of scientific literature confirms a gatekeeper’s position of
this Court for maintaining a minimal level of collective enforcement of human
rights and fundamental freedoms within the Council of Europe. e interpreta-
tive authority combined with a firm determination to promote European human
rights values have positioned the Court in an avant-garde composition of human
rights law. While relying on the dynamic interpretation of the Convention and
discourse of practical and effective rights, the Court in Strasbourg has developed
a clear evolutive line of human rights standards. e standards set by the Court to
safeguard the rights of sexually abused children fall within the margin of evolutive
approach in interpreting the rights inherent in both Article 3 and Article 8 of the
Convention. e Court’s judicial review methodology in CSA cases has developed
gradually starting from almost incidental enumeration of guiding principles in its
early case law and concluding with the comprehensive standards tailored within
the context of child friendly justice. e notions of child’s particular vulnerability
and child sensitive assessment have become a guiding force for reinforcing specific
child applicant’s rights, like the freedom from ill-treatment and right to personal
integrity and dignity. Interpreted together, these 2 basic rights have been used to
88 Judgement M.P. and Others v. Bulgaria, op. cit., note 17, § 113
89 Judgement A and B v. Croatia, op. cit., note 17, § 129
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES (ECLIC) – ISSUE 4
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create a tight net of state’s positive obligations to prevent, respond to, investigate
and prosecute the sexual abuse of children. In case of CSA the state has an obliga-
tion to safeguard the physical and psychological integrity of children, and in order
to fulfil it, firstly, the state has to adopt an adequate legal framework with effective
deterrent effect, secondly, apply the framework according to acceptable procedural
standards and thirdly, take sufficient consideration of rights of sexually abused
children in practice. e required obligations (TRiO) impose a quite demand-
ing task to national legislators and prosecuting authorities, and last year, the state
oriented TRiO was transformed by the Strasbourg Court itself in an obligation to
appoint a separate representative for a child applicant in A and B v. Croatia. e
identification of a potential conflict of interest between parents was sufficient for
the Court to create a new procedural means aimed at ensuring the independent
submissions on behalf of the child as to her best interests. e set of novel stan-
dards with dual binding effect spreading over the state and ECtHR level is a clear
sign of Court’s potential to create and steadily upgrade a norm in the ambit of
jurisprudential developments.
e noted trends in the Court’s case law confirm a normative evolution legiti-
mized by the principle that “mankind owes to the child the best that it has to
give”.90 However, it has to be recalled that the HUDOC search engine discovered
10 judgments related to protection of sexually abused children’s rights, and this
fact calls for further analysis whether the ECtHR is accessible enough to children
and whether the justice it creates is child friendly indeed. e analysis has also
revealed that judicial reasoning techniques used by the Court present another
important concern. e Court has places child’s vulnerability and sensitive ap-
proach in the centre of its doctrinal discourse, however, the explanations related
to their nature and effect on other “classical” institutes is rather vague. e lack of
clarity in Court’s reasoning and consistency in applying constitutional principles
and relevant tests can be seen in a number of examples. It is still ambiguous under
which circumstances the CSA amounts to torture, inhuman or degrading treat-
ment or only constitutes a violation of the right to respect for private life under
Article 8. e level of discretion left to the states under the margin of appreciation
doctrine in CSA cases has remained unclear and the rule - the more important
right or freedom the narrower margin of appreciation, inconsistently applied. e
absence of precise guidelines on thorough scrutiny and standard of reasonableness
related to effective investigation is another sign of insufficient judicial preciseness.
It seems that the Court is concentrated on setting the standard and the question
of its implications is simply left to the states. Except from the fact that this strat-
90 Geneva Declaration of the Rights of the Child of 1924, adopted Sept. 26, 1924, League of Nations
O.J. Spec. Supp. 21, at 43 (1924)
Dalida Rittossa: STRENGTHENING THE RIGHTS OF SEXUALLY ABUSED CHILDREN IN... 553
egy may lower the quality of Court’s reasoning, it adds to the general uncertainty
that clouds the positive obligation standards in ECtHR case law. If the standards
are not embodied with sufficient legal certainty, the question remains whether the
Strasbourg Court protective policy has a doctrinal power to be adequately imple-
mented within the national jurisdictions, and therefore, a potential to reach fair
and just protection of children from sexual abuse within the Council of Europe.
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EU LAW
1. Council Directive 2012/29/EU establishing minimum standards on the rights, support and
protection of victims of crime [2012] OJ L315/57
ECHR
1. A and B v. Croatia, Application no. 7144/15, Judgment of 4 November 2019
2. Al-Saadoon and Mufdhi v. e United Kingdom, Application no. 61498/08, Judgment of 4
October 2010
3. Blokhin v. Russia, Application no. 47152/06, Judgment of 23 March 2016
4. C.A.S. and C.S. v. Romania, Application no. 26692/05, Judgment of 24 September 2012
5. D.P. & J.C. v. the United Kingdom, Application no. 38719/97, Judgment of 10 January 2003
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES (ECLIC) – ISSUE 4
556
6. Davydov and Others v. Ukraine, Application no. 17674/02 and 39081/02, Judgment of 1
October 2010
7. European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols, Rome, 4 November 1950, ETS 5
8. Hénaf v. France, Application no. 65436/01, Judgment of 27 February 2004
9. Irina Smirnova v. Ukraine, Application no. 1870/05, Judgment of 6 March 2017
10. K.U. v. Finland, Application no. 2872/02, Judgment of 2 March 2009
11. Khlaia and Others v. Italy, Application no. 16483/12, Judgment of 15 December 2016
12. M.C. v. Bulgaria, Application no. 39272/98, Judgment of 4 March 2004
13. M.G.C. v. Romania, Application no. 61495/11, Judgment of 15 June 2016
14. M.P. and Others v. Bulgaria, Application no. 22457/08, Judgment of 15 February 2012
15. M.S. v. Ukraine, Application no. 2091/13, Judgment of 11 October 2017
16. O’Keee v. Ireland, Application no. 35810/09, Judgment of 28 January 2014
17. Öcalan v. Turkey, Application no. 46221/99, Judgment of 12 May 2005
18. Selmouni v. France, Application no. 25803/94, Judgment of 28 July 1999
19. Škorjanec v. Croatia, Application no. 25536/14, Judgment of 28 June 2017
20. Söderman v. Sweden, Application no. 5786/08, Judgment of 12 November 2013
21. Volodina v. Russia, Application no. 41261/17, Judgment of 4 November 2019
22. X and Y v. the Netherlands, Application no. 8978/80, Judgment of 26 March 1985
23. Y. v. Slovenia, Application no. 41107/10, Judgment of 28 august 2015
24. Z and Others v. the United Kingdom, Application no. 29392/95, Judgment of 10 May 2001
INTERNATIONAL DOCUMENTS
1. e Council of Europe Convention on the Protection of Children against Sexual Exploita-
tion and Sexual Abuse (Konvencija Vijeća Europe o zaštiti djece od seksualnog iskorištavanja
i seksualnog zlostavljanja), Official Gazette, International Agreements, No. 11/2011,
13/2011, 15/2011
2. Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly
Justice (2010)
3. Geneva Declaration of the Rights of the Child of 1924, adopted Sept. 26, 1924, League of
Nations O.J. Spec. Supp. 21, at 43 (1924)
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