European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF A, B AND C v. LATVIA

 

(Application no. 30808/11)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

31 March 2016

 

 

 

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 A, B and C v. Latvia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          André Potocki,
          Yonko Grozev,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 November 2015 and 23 February 2016,

Delivers the following judgment, which was adopted on the latter date:

PROCEDURE

1.  The case originated in an application (no. 30808/11) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Ms A and Ms B, and a Latvian national, Ms C (“the applicants”), on 12 May 2011. The Vice-President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court).

2.  The applicants were represented by Ms I. Mola, a lawyer practising in Mārupe District in Latvia. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.

3.  The applicants alleged that the State authorities had failed to investigate effectively their complaints of indecent sexual acts allegedly perpetrated against them by a sports coach from a State sports school, in breach of Article 3 of the Convention. By doing so, the State had failed to exercise its positive obligation of preventing indecent acts against minors and of protecting their physical integrity, in violation of Article 8.

4.  On 2 September 2013 the above-mentioned complaints were communicated to the Latvian Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5.  Further to the notification under Article 36 § 1 of the Convention and Rule 44 § 1 (a), the United Kingdom Government did not wish to exercise their right to intervene in the present case.

6.  On 2 June 2015 the President of the Fourth Section decided under Rule 54 § 2 (c), that the parties should be invited to submit further written observations on the admissibility and merits of the application concerning the applicants’ complaint under Article 8 of the Convention. The parties were further requested under Rule 54 § 2 (a) to submit information and documents concerning civil proceedings against the sports coach.

7.  On 26 June 2015 the Government submitted their further observations and information. The applicants made no submissions.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

8.  The first applicant was born in 1992, the second applicant in 1995, and the third applicant in 1993. They are female and reside in Latvia.

9.  The relevant facts of the case as submitted by the parties and emerging from the documents furnished to the Court may be summarised as follows.

10.  From a young age the applicants trained in modern pentathlon. In 2007 they enrolled in a State sports school in Riga.

11.  According to their submission, the first and third applicants commenced training with the sports school’s coach O.B. in summer 2008 and the second applicant was coached by him during the summer of 2009.

12.  In addition to the above-mentioned training, O.B. organised sports summer camps on the school’s campus, which the first and third applicants attended in 2008 and all the applicants attended in 2009.

13.  At the time of the events in issue, the applicants were under eighteen years of age.

A.  The investigation into the applicants’ allegations

1.  Opening of the investigation

14.  On 4 January 2010 the mother of the first and second applicants submitted a complaint to the State police alleging that the coach, O.B., had sexually abused her daughters.

15.  The same day the police opened a criminal investigation under section 162 of the Criminal Law (Krimināllikums) (sexual abuse (pavešana netiklībā)) with respect to the period between summer 2008 and September 2009.

16.  In the course of investigation the police took statements from various individuals, including the applicants and their parents, and O.B.’s former students and their parents.

2.  Police investigation

(a)  Statement made by the first and second applicants’ mother

17.  On 4 January 2010 the mother stated that she had learnt from her daughters that O.B. had requested that after training they attend the sauna fully undressed. The coach had explained that wearing clothes was unhealthy. The second applicant had refused. However, other girls between thirteen and sixteen years of age, including the first applicant, had attended the sauna naked. The mother named the girls who had attended the sauna naked.

18.  On one occasion when the second applicant had been in the sauna half-undressed, O.B. had entered the sauna and had told her that she was still little, thereby embarrassing her.

19.  On another occasion, after the sauna O.B. had massaged the first applicant while touching her intimate body parts.

20.  He had furthermore watched the girls changing and had touched their intimate body parts.

21.  The first and second applicants’ mother submitted with regard to the third applicant that she had travelled with O.B. to a competition in Lithuania, where he had pressurised her to share the same bed. The third applicant however had refused.

(b)  The applicants’ statements

22.  On 5 and 14 January 2010 the police took statements from the three applicants, who were granted the status of injured parties in the proceedings. The police took an additional statement from the third applicant on 1 April 2010 and from the second applicant on 6 April 2010.

(i)  Sauna and massages

23.  The applicants stated that the sauna sessions took place after training around twice a week. The second applicant had attended the sauna only twice.

24.  Having arrived for the sauna, the first and second applicants had seen the other girls undressing fully. The other girls had told that it had been O.B.’s request that the sauna be attended naked. O.B. had said that it was very healthy to attend the sauna in that way.

25.  At the beginning, the first applicant had felt shy. Yet, as she had seen the other girls attending the sauna naked, she had started doing so. For the same reason, the third applicant had also started going to the sauna naked.

26.  The second applicant had removed only the top part of her swimsuit and had entered the sauna. Suddenly O.B., wearing shorts and a cap, had entered, which had startled the second applicant. She therefore had covered herself with her hands, to which O.B. had reacted by telling the other girls to look at how little she still was and saying that the other girls were already grown up and therefore naked. The second time, she had attended the sauna wrapped in a towel.

27.  According to the applicants’ account, even though girls had been in the sauna naked, O.B. - dressed in shorts - had come in and massaged them using a special bath brush (a birch “besom” for a steam bath, used to swat or massage the body during a steam-bath procedure). Although the second applicant had refused that massage, she had witnessed O.B. asking the other girls to lie on their back and then massaging them. The second applicant had seen O.B. telling the third applicant to go to the sauna, and that he would come to massage her. The third applicant had listened to him. The second applicant stated as follows:

“... when [O.B.] was massaging [the girls] in the sauna, he did not touch [their] intimate body parts, [he] touched [their] bodies only with the bath brush, [he] did not touch [them] with [his] hands.”

28.  The second applicant had told the other girls that the above-mentioned practice was not normal. However, they had responded that, as it had been requested by the coach, it had to be complied with. The first and third applicants stated that O.B. had been their trainer and teacher, whom they had to obey. The second applicant, however, considered that there had been a possibility to refuse. To her mind the other girls had attended the sauna as they had not wished to disobey O.B. They had practically worshipped him, and had listened to everything he said.

29.  From the documents furnished to the Court it appears that the applicants gave the police the names of the other girls who had attended the sauna, A.F., A.B. - who appears to have been a relative of O.B. - and V.A. The third applicant indicated that V.A. had rarely been to the sauna. According to the second applicant’s account, there had been another girl, K.D.

30.  The first applicant also recounted an occasion when she had experienced pain in her leg. O.B. had told her that he would give a massage and after the sauna had laid her on a bed and massaged her while she had been wearing only underpants. O.B. had touched the lower part of her stomach.

(ii)  Changing room

31.  The applicants stated that there had been times when O.B. had entered the girls’ changing room as if looking for someone. When passing by them he had - as if accidently - touched the girls’ intimate body parts. The second applicant stated that he had also tried to touch her, which she had prevented.

(iii)  Trip to Lithuania

32.  The first applicant stated that she had heard that in November 2009 the third applicant and some boys had travelled with O.B. to a competition in Lithuania. There he had told the third applicant that she would sleep with him in the same bed. The third applicant had gone to a separate bed to sleep and O.B., while drunk, had entered the room and had pulled at the children’s legs, including those of the third applicant.

33.  The third applicant also gave evidence regarding the trip to Lithuania with O.B. and the other two boys, whose names she provided.

34.  At a hotel O.B. had told her that she would sleep with him in the same bed. She had spoken to one of the boys and had taken one of the single beds. At around 10 p.m. O.B. had returned to the hotel room drunk. After some time he had gone to sleep. The third applicant had felt afraid that O.B. might do something bad to her.

35.  During all three days of the competition, O.B. had consumed alcohol, even though he had also been driving a vehicle.

(c)  Psychologist’s report

36.  In April and May 2010 the police ordered a psychologist’s report regarding the applicants.

37.  During the psychologist’s examination the first applicant commented that she had been surprised that the sauna had to be attended and that girls had attended it naked and that O.B. would enter and massage them with a besom, which had not seemed normal and had been unpleasant. However, the first applicant had felt afraid to tell her parents. O.B. had often touched her body, putting his arm around her waist, sitting her on his lap and hugging her, and also during massages. On one occasion during a massage he had touched her between her legs. The first applicant had been confused as to whether the coach’s behaviour had been normal or bad. She had not wished to tell O.B. anything bad as he had helped her a lot. However, at the workplace he had almost always been under the influence of alcohol. When any of the girls had not wished to sit on his lap, he would use force to pull them down.

38.  The second applicant likewise told the psychologist that she had been very surprised about all the girls attending the sauna naked and O.B. entering and massaging them with a besom. She had tried to persuade the girls that it was not normal and had gone to the sauna dressed in a swimsuit. O.B. had ridiculed her about it in front of the other girls, saying that she was so shy because she was little. Also, the coach had always been trying to touch her, and to put his arm around her waist. It had been unpleasant and she had tried to avoid him. The second applicant had gone to the sauna twice. She had gradually started telling her parents about O.B.’s behaviour.

39.  The third applicant did not wish to speak about the events in issue. Thoughts about O.B.’s behaviour caused negative emotions in her and she was trying to forget it. She confirmed her earlier testimonies. The psychologist noted her statements to the police of 14 January and 1 April 2010. Concerning the sauna sessions, the third applicant had not found it normal that the sauna needed to be attended naked. However, she had started doing the same as the other students. The report referred to the applicant’s character report from her previous school, which stated that on 1 September 2009 the applicant had been observed in a tense condition, unwilling to participate in extracurricular activities, in low spirits and suffering from loss of concentration. Suddenly in the mid-December 2009 she had decided to change school.

40.  According to the psychologist’s report, the three applicants had been able to understand the nature and meaning of actions directed towards them.

41.  However, the first applicant’s ability to object could have been diminished due to personality traits such as a difficulty in saying “no” and in objecting, especially to older persons, and the wish to avoid conflict situations and to maintain a friendly relationship with everyone. The third applicant’s ability to resist could have been diminished by personality traits such as a difficulty in expressing her own opinion where it contradicted the expectations of others, in assessing her own attitude and feelings with regard to events, judging what is right and what is not, an insecurity in communication, and the wish to avoid conflict situations and to maintain a friendly relationship with everyone. With regard to the second applicant, the psychologist’s report stated that she had been able to exhibit resistance appropriate to the situation.

42.  The report noted that the events in issue had caused the first applicant unpleasant feelings, insecurity, and anger and had made her distrustful in her communication with other coaches and with older men. With regard to the second applicant the report stated that she had retained anger, and had felt offended and guilty. The third applicant had been in low spirits, unable to concentrate, tense, and unwilling to participate in extracurricular activities, but this had lessened over time. She had felt offended. She still retained shame, anger, unpleasant thoughts and memories about the coach’s conduct.

43.  The report concluded that the alleged conduct of the coach had not caused the applicants to suffer psychological trauma. Owing to their psychological condition, however, the applicants’ participation in a trial or confrontation was not recommended.

(d)  The coach, O.B.

44.  On 27 January 2010 the police apprehended and questioned O.B. as a suspect.

45.  According to O.B., girls had entered the sauna either wrapped in towels or wearing swimsuits. He had not entered the sauna with naked girls. They had exited the sauna dressed. O.B. would ask a particular child whether they required a massage. If the child responded in affirmative he would enter the sauna and massage the child with a besom.

46.  In the sauna O.B. had massaged the first and third applicants at their request. He continued that during the massage they had been fully naked. No complaints however had been made. He had massaged by first lifting up one or both legs and massaging them and had then moved on to massage their arms. He had not touched the girls’ intimate body parts. He had known that touching breasts during massage was unhealthy. He had not known how it had come about that girls had been in the sauna naked. He had not told them that they needed to attend the sauna in that way.

47.  O.B. stated that in summer 2009 he had massaged the first applicant on her hip muscle. It had been hurting and she had asked him to massage it.

48.  On 29 January 2010 the police released O.B. subject to his not changing his place of residence and complying with a prohibition on approaching the applicants or the sports school.

(e)  Third applicant’s mother

49.  On 21 January 2010 the mother of the third applicant gave evidence. In September 2009 her daughter had told her that girls attended the sauna naked together with O.B., who himself had been dressed in shorts. She had also mentioned a trip to Lithuania during which O.B. had touched her leg and she had run into the bathroom.

(f)  O.B.’s students and their parents

50.  Of the other students mentioned by the applicants, it appears that the police interviewed V.A. on 14 January 2010 and her mother on 19 January 2010. Also, K.D.’s statement was taken on 13 August 2010 and her mother’s had been taken on 1 February 2010.

51.  In particular, V.A. stated that she did not like the sauna. She had attended it only twice. Girls had attended the sauna naked and O.B. had massaged them. She had had good relations with O.B. According to V.A.’s mother, V.A. did not like the sauna in principle and it was unlikely that she had often attended it.

52.  According to K.D.’s account of events, she had trained with O.B. until 2008. He had been a good coach (the copy of K.D.’s statement furnished to the Court by the Government in some parts was illegible). At a sports camp in summer 2005 her mother had gone into the sauna together with the girls. K.D. had told her that, as a sports doctor, O.B. would usually massage them. The mother had asked her: “...but how, naked?” Her daughter had replied that they would cover their bodies up with towels. Therefore the mother had understood that O.B. had not massaged them naked.

53.  With regard to the other students referred to by the applicants, the police interviewed the mother of A.F. on 15 January 2010. The latter stated that her daughter had not paid any attention to attending the sauna naked as she had trained with O.B. from a young age. She had seen the other girls undressing for the sauna and had followed their example. A.F. had stated that the coach had not harassed them. In the view of A.F.’s mother, O.B. should not have allowed the girls to attend the sauna undressed and should have informed the parents. She stated that she would allow A.F. to be questioned only on a prosecutor’s authorisation.

54.  On 25 January 2010, the police questioned D.B. - who had been referred to by the first and second applicants’ mother - and D.B.’s mother. D.B. had trained with O.B. between 2005 and 2008. From a copy of D.B.’s statement furnished to the Court by the Government it appears that she stated:

“... at the beginning [students] were going to the sauna in swimsuits, but [O.B.] said that [they] should not be shy and should attend the sauna without swimsuits in order for the body to relax fully. [D.B.] had started to take massages naked, as had the other girls.”

D.B. had not found it inappropriate, because the coach had entered the sauna only in order to demonstrate how to massage using a besom. Neither D.B. nor her mother had any complaints to lodge against him.

55.  Between January and August 2010 the police also took other statements.

56.  It emerges that the police interviewed a parent of one of O.B.’s students at the time of the investigation; specifically, on 3 February 2010 they questioned A.K., whose son, V.K., trained with O.B. He did not have any complaints concerning the coach and did not know any details about the situation in issue.

57.  The police also questioned numerous former students of the coach. On 28 January 2010 J.R. gave evidence that she had been coached by O.B. until 2004. She described him positively. With regard to O.B.’s massaging naked girls in the sauna, she believed that he had done it through ignorance or a lack of understanding about the situation. But at the same time, he had done it in order to prepare aspiring athletes. She did not believe that he had had a sexual purpose. Parents of O.B.’s former students, J.P., J.A., and I.S.H., and also N.I. - who had herself trained with O.B. between 1991 and 1992 - described O.B. as a very good coach. I.S.H. had learnt from her son that boys had taken sauna massages wearing swimming trunks. Two other former students of O.B., A.D. - coached between 1994 and 2001 - and J.M., described O.B. as a very good coach.

(g)  Other witnesses

58.  On 1 February 2010 the doctor L.G. submitted evidence that the sauna was one of the most important renewal procedures after training. However, if a male was present in the sauna together with girls, it was recommended that they all wear swimwear.

3.  Closure of the investigation

59.  On 18 October 2010 the investigator, T.M., terminated the investigation.

60.  In her decision T.M. cited the evidence collected. She concluded that the investigation had revealed that the sauna sessions had been voluntary. Girls had attended the sauna fully undressed, either on their own initiative or because that had been the practice by others. As explained by O.B., sauna sessions were healthy and necessary after training. He had massaged students at their request. During massages they had been undressed but O.B. had had no interest in the girls. He had merely assisted with the massages.

61.  T.M. could not establish that O.B. had acted with a sexual purpose, an element required under section 162 of the Criminal Law (sexual abuse). For that reason and referring to the principle of in dubio pro reo T.M. closed the investigation against O.B. for the lack of elements of crime.

4.  First-level prosecution review

(a)  Appeal against closure of the investigation

62.  On 29 October 2010 the applicants’ parents appealed to the prosecutor’s office against the termination decision. In November 2010 they supplemented the appeal.

63.  They claimed that the applicants’ allegations had been ignored. The first applicant had indicated that O.B. had touched her intimate body parts; according to the second applicant, O.B. had ridiculed her in front of the other girls with regard to undressing in sauna; and the third applicant had recounted her experience in Lithuania. The allegation that O.B. had entered the changing rooms had not been addressed.

64.  Contrary to the parents’ request, the students who had travelled to Lithuania together with O.B. and the third applicant had not been questioned. The statements of children present in the sauna had not been taken.

65.  The parents contended that their reference to a recognised trainer who maintained that sauna sessions harmed the health of athletes under the age of eighteen had been neglected. They named a witness in that regard and asked that a statement be taken from him. They also requested that the first applicant’s current coach and the school psychologist be interviewed.

66.  They furnished the report by the psychologist, K.V., to the effect that the first and second applicants had suffered psychological trauma. The appeal therefore sought the commissioning of another expert report.

(b)  Appeal decision

67.  On 1 December 2010 the prosecutor I.G. dismissed the appeal.

68.  She reasoned that the applicants had been questioned thoroughly. Sixteen of O.B.’s former students, and their parents had been interviewed, as had two further witnesses as regards the usefulness of sauna.

69.  Endorsing the investigator’s conclusion, I.G. stated that the investigation had not shown that O.B. had acted with a sexual purpose. All the witnesses had stated that O.B. had never touched students’ naked body parts other than with a besom and when massaging parts causing pain. Accordingly, the elements of crime under section 162 of the Criminal Law (sexual abuse) were not present. Nor could the elements under section 174 of the Law (cruelty and violence against a minor) be identified. None of O.B.’s students had stated that O.B. had treated his students in a cruel or violent way. The phrase he had used [with regard to the second applicant] had not reached that threshold.

70.  I.G. dismissed the parents’ requests that further evidence be collected. Likewise, the report of the psychologist, K.V. concerning the first and second applicants could not be included in the investigation file as it had already been closed.

5.  Second-level prosecution review

(a)  Appeal to a higher prosecutor

71.  On 13 December 2010 the applicants’ parents appealed against the aforementioned decision to a higher prosecutor. In January 2011 they supplemented the appeal.

72.  They disputed the conclusion that the element of a sexual purpose had not been present. In particular, they noted that according to the first applicant O.B. had touched the lower part of her stomach, the area between her legs, and her breasts during massages. The second applicant had told of O.B. ridiculing her in front of the other girls regarding undressing for the sauna. The third applicant’s account regarding the events in Lithuania had been ignored and other students who had been present on the trip to Lithuania had not been interviewed. No consideration had been given to the allegation of O.B. entering changing rooms and, as if by accident, touching girls’ breasts.

73.  The appeal referred to the report by the psychologist, K.V., stating that the first applicant exhibited symptoms associated with violence or serious psychological trauma.

(b)  Higher prosecutor’s decision

74.  On 14 January 2011 the higher prosecutor, E.B., dismissed the appeal.

75.  He endorsed the findings of the lower prosecutor, including the view that O.B. had regarded sauna sessions as beneficial to athletes’ health and had offered them to his students for this reason. Attendance of the sauna had been voluntary. Students had been naked because that had been the practice of the other students. Sometimes O.B. had entered the sauna but in order to perform massages only.

76.  With regard to the episode in Lithuania, E.B. deemed that the third applicant’s allegation had not in itself revealed that a crime had been committed and statements from students present were therefore unnecessary. The investigation had been thorough and no further investigative actions were required.

6.  Highest-level prosecution review

(a)  Appeal to chief prosecutor

77.  On 26 January 2011 the applicants’ parents lodged an appeal against the aforementioned decision to the chief prosecutor, V.O.

78.  They maintained their previous requests and arguments, including the contention that the girls had attended the sauna naked because O.B., using his coach’s authority, had convinced them that wearing swimsuits was harmful to health. Initially all the applicants had been wearing swimsuits but the other girls had told them that O.B. had insisted on their being undressed.

79.  No regard therefore had been given to the claim that the first and third applicants had undressed due to pressure from O.B.

80.  That aspect and the reasons which had led children to undress for the sauna had not been investigated. Even though the testimonies of other parents stated that their children had also attended the sauna naked, these children had not been interviewed.

81.  Furthermore, according to boys coached by O.B. they had not been asked to attend the sauna undressed, which, in the parents’ submission, signalled that O.B. had been interested in naked girls. None of the other coaches at the sports school had massaged their students in the sauna, especially not naked. Moreover, O.B. had been in the habit of entering the sauna without the applicants’ permission.

82.  The parents further argued that the lower prosecutor had referred to the allegation that during a massage O.B. had touched the first applicant between her legs without specifying further detail, even though the first applicant had specifically stated that the coach had touched her intimate body parts. The first applicant had spoken about it to the psychologist, who had affirmed that she had been speaking the truth.

(b)  Final appeal decision

83.  On 28 February 2011 the chief prosecutor, V.O., dismissed the appeal and affirmed the closure of investigation.

84.  V.O. endorsed the lower prosecutor’s findings. With regard to the parents’ request for the hearing of further witnesses, V.O. stated as follows:

“[A]fter having assessed [the applicants’] testimonies in that part, no grounds exist to conclude that a crime has been committed. Moreover, in these testimonies [the applicants] gave no evidence on the circumstances mentioned in the appeal in question.”

85.  No appeal lay against the aforementioned decision.

B.  Attempts to reopen the investigation

86.  On 17 June 2011 the mother of the first and second applicants, arguing that the report by the psychologist, K.V., constituted newly discovered facts, asked the State police to reopen the investigation. She stated that K.V. had concluded that the first applicant had suffered psychological trauma.

87.  By a final decision of 1 September 2011 that request was dismissed.

88.  On 22 November 2011 the mother of the third applicant, arguing that the report of the psychologist, K.V., constituted newly discovered facts, asked the police to reopen the investigation. According to K.V.’s report, the third applicant exhibited possible post-traumatic stress symptoms.

89.  By a final decision of 6 February 2012 that request was dismissed.

C.  Civil proceedings

1.  First instance proceedings

90.  In the meantime, on 20 April 2011 a compensation claim against O.B. was lodged on behalf of the applicants before the Riga City Vidzeme District Court (Rīgas pilsētas Vidzemes priekšpilsētas tiesa).

91.  Relying on Article 92 of the Constitution (Satversme) (right to compensation) and section 1635 of the Civil Law (Civillikums) (right to compensation), it was requested that O.B. pay compensation of 3,000 Latvian lati (LVL) (roughly corresponding to 4,286 euros (EUR)) with regard to the first and the third applicants and LVL 1,000 (roughly corresponding to EUR 1,428) with regard to the second applicant.

92.  On 30 October 2013 the District Court delivered its judgment.

93.  According to the District Court, it was not disputed that the first and third applicants had started to train with O.B. in June 2009 and the second applicant in August 2009 (sic). The first and second applicants had trained with him until September 2009 and the third applicant until November 2009.

94.  It was established that O.B. had recommended sauna sessions to his students. It was not, however, established that O.B. had psychologically influenced the applicants with regard to attending the sauna. At the same time, the District Court continued, it was not proved that the sauna sessions had been necessary in order to achieve good results in sports without harming health. They had not been included in the training programme. It was not proved that either the applicants or their parents had consented to the coach’s presence in the sauna together with naked girls. The applicants had been minors and therefore unable to fully understand or assess the situation. They had trusted and obeyed a person of the age of majority and could not have fully protected themselves against interference with their privacy.

95.  According to generally accepted ethical norms, it was not a tradition in the society of the region to appear naked - even in the sauna - in front of the opposite sex. Massaging naked girls with a besom had been unethical and in contravention of general moral principles, as had been the suggestion to a girl under the age of eighteen to sleep with the coach in the same bed. The District Court found that these actions on part of O.B. had violated the applicants’ right to privacy.

96.  Noting, inter alia, that none of the applicants had been caused grievous or irreversible consequences, the District Court ordered that O.B. pay LVL 300 (roughly corresponding to EUR 428) each to the first and third applicants and LVL 100 (roughly corresponding to EUR 143) to the second applicant.

2.  Appeal proceedings

97.  As submitted by the Government and not disputed by the applicants, on 2 December 2013 O.B. lodged an appeal against the aforementioned judgment before the Riga Regional Court (Rīgas apgabaltiesa). No appeal, however, was lodged by the applicants.

98.  On 12 March 2014 O.B. withdrew his appeal. On 19 March 2014 the appeal proceedings were discontinued and the judgment of the District Court became final on 1 April 2014.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Rights of the Child

1.  The Constitution

99.  Article 110 of the Constitution provides for the protection by the State of the rights of the child. The State must provide special support to disabled children, children left without parental care and those who have suffered from violence.

Article 95 of the Constitution provides that the State has a duty to protect human honour and dignity. Torture or cruel or degrading treatment of a person is prohibited. Article 96 provides, inter alia, that everyone has the right to inviolability of his or her private life.

2.  Law on the Protection of Rights of the Child (Bērnu tiesību aizsardzības likums)

100.  According to section 3(1), a child is a person below the age of eighteen except where in accordance with the law a person has been declared of age or has entered into a marriage prior to having reached the age of eighteen.

101.  Section 6(2) requires that all actions concerning a child shall as a priority ensure the child’s interests and rights, irrespective of whether the respective actions are carried out by State or local government institutions or courts.

102.  Section 9(1) furthermore guarantees, inter alia, a child’s right to private life and the inviolability and freedom of the person. Section 9(2) prohibits cruel treatment of a child, their torture or physical punishment, and any violation of their dignity and honour.

103.  Under section 15(2) a child has the right to protection from physical and mental exploitation, from sexual exploitation and seduction, and from other forms of exploitation which may in any way harm them. Likewise, section 51 provides for a child’s protection against unlawful activities. According to section 51(1) a person guilty of violence against a child, or encouraging or forcing a child to participate in sexual activities, or the exploitation or involvement of a child in prostitution shall be held liable in accordance with the law. Under section 51(3) every person has the duty to inform the police or other competent authority of violence or of any other criminal offence directed against a child. A person guilty of the failure to provide such information shall be held liable in accordance with the law.

B.  Criminal prosecution

1.  Criminal Law

104.  At the material time section 162(1) criminalised the sexual abuse (pavešana netiklībā) of a minor perpetrated against their will or if perpetrated by an adult. Section 162(2) also criminalised the sexual abuse of a child under the age of fourteen. There were several amendments to the applicable punishment.

105.  On 15 May 2014 new wording of section 162 was adopted, which came into effect on 14 June 2014. It criminalised the sexual abuse of a child under the age of sixteen or of a person in a situation in which the person is unprotected, specifically the commission with a sexual purpose of a sexual act without physical contact with the victim’s body where perpetrated by a person of the age of majority, or if perpetrated by means of exploiting a situation in which the victim is unprotected, or if perpetrated against the victim’s will, using violence or threat or by exploiting a position of trust, authority or other influence over the victim.

2.  Case-law

106.  The Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments) in its decision of 16 September 2008 (in case no. SKK - 476/2008, 11100003907) held that sexual abuse within the meaning of section 162 of the Criminal Law may consist of sexual activities with a victim where such activity does not always involve physical contact with the victim. Sexual abuse may be intellectual or physical. Therefore the actus reus of sexual abuse may be committed, for example, by compelling the victim to expose his or her body or genitals, or compelling victims to perform sexual activities with one other.

C.  Right to compensation

1.  The Constitution

107.  The second sentence of Article 92 of the Constitution provides that everyone has a right to adequate compensation in the event of an unlawful interference with his or her rights.

2.  Civil Law

108.  Section 1635 stipulates that any infringement of rights, that is, every unlawful activity shall give the person who has suffered damage, including non-pecuniary damage, the right to claim compensation from the wrongdoer, to the extent that he or she may be held liable for such act.

3.  Case-law

109.  With regard to the case-law on Article 92 of the Constitution and section 1635 of the Civil Law see A.K. v. Latvia (no. 33011/08, §§ 55 and 56, 24 June 2014).

III.  INTERNATIONAL CONVENTIONS

A.  The United Nations Convention on the Rights of the Child 1989

110.  The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the States parties, including all member States of the Council of Europe (see Söderman v. Sweden [GC], no. 5786/08, § 51, ECHR 2013). Latvia acceded to this convention on 14 April 1992. The relevant Articles read:

Article 19

“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”

Article 34

“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

(c) The exploitative use of children in pornographic performances and materials.”

111.  As interpreted by the United Nations Committee on the Rights of the Child in its General Comment No. 13 (2011):

“4.  Definition of violence. For the purposes of the present general comment, ‘violence’ is understood to mean ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’ as listed in article 19, paragraph 1, of the Convention ... In common parlance the term violence is often understood to mean only physical harm and/or intentional harm. However, the Committee emphasizes most strongly that the choice of the term violence in the present general comment must not be interpreted in any way to minimize the impact of, and need to address, non-physical and/or non-intentional forms of harm (such as, inter alia, neglect and psychological maltreatment).

...

25.  Sexual abuse and exploitation. Sexual abuse and exploitation includes:

(a) The inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity; (Sexual abuse comprises any sexual activities imposed by an adult on a child, against which the child is entitled to protection by criminal law...)

...

(d) ... Many children experience sexual victimization which is not accompanied by physical force or restraint but which is nonetheless psychologically intrusive, exploitive and traumatic.

...

51.  Investigation. Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights-based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. Extreme care must be taken to avoid subjecting the child to further harm through the process of the investigation. Towards this end, all parties are obliged to invite and give due weight to the child’s views.

...

61. Article 3 (best interests of the child). The Committee emphasizes that the interpretation of a child’s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms of violence. It cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity. An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention...

...”

B.  The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse

112.  This convention obliges its parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conduct. The convention was ratified by Latvia on 18 August 2014 and entered into force with respect to it on 1 December 2014. The relevant parts read as follows:

Chapter VI - Substantive criminal law
Article 18 - Sexual abuse

“1 Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:

a engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;

b engaging in sexual activities with a child where:

- use is made of coercion, force or threats; or

- abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or

- abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.

2 For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child.

3 The provisions of paragraph 1.a are not intended to govern consensual sexual activities between minors.”

Article 24 - Aiding or abetting and attempt

“...

2 Each Party shall take the necessary legislative or other measures to establish as criminal offences, when committed intentionally, attempts to commit the offences established in accordance with this Convention.

3 Each Party may reserve the right not to apply, in whole or in part, paragraph 2 to offences established in accordance with Article 20, paragraph 1.b, d, e and f, Article 21, paragraph 1.c, Article 22 and Article 23.”

Article 25 - Jurisdiction

“1 Each Party shall take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed:

a in its territory; ...

...”

Chapter VII - Investigation, prosecution and procedural law
Article 30 - Principles

“1 Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child.

...

3 Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay.

...

5 Each Party shall take the necessary legislative or other measures, in conformity with the fundamental principles of its internal law:

- to ensure an effective investigation and prosecution of offences established in accordance with this Convention, allowing, where appropriate, for the possibility of covert operations;

...”

Article 31 - General measures of protection

“1 Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:

...

c enabling them, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered;

...”

Article 34 - Investigations

“1 Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. Such units or services shall have adequate financial resources.

...”

Article 35 - Interviews with the child

“1 Each Party shall take the necessary legislative or other measures to ensure that:

a interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;

...”

113.  In the Explanatory Report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, the following relevant comments are given to Chapter VI, “Substantive criminal law”, of that convention:

“112. Articles 18 to 23 are concerned with making certain acts criminal offences...

113. The offences referred to in these articles represent a minimum consensus which does not preclude supplementing them or establishing higher standards in domestic law.

...”

Article 18 - Sexual abuse

“117. Article 18 sets out the offence of sexual abuse of a child. This offence has to be committed intentionally for there to be criminal liability. The interpretation of the word ‘intentionally’ is left to domestic law, but the requirement for intentional conduct relates to all the elements of the offence.

...

127. The term ‘sexual activities’ is not defined by the Convention. The negotiators preferred to leave to Parties the definition of the meaning and scope of this term.

...”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

114.  The applicants complained that the State authorities had failed to investigate effectively their allegations of indecent sexual acts perpetrated against them by a sports coach from a State sports school, in breach of Article 3 of the Convention. By doing so, the State had failed to exercise its positive obligation of preventing indecent acts against minors and of protecting their physical integrity, in violation of Article 8.

115.  The provisions of the Convention relied upon by the applicants, in so far as relevant, read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1.  Everyone has the right to respect for his private ... life ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

116.  The Court, being the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I), finds that the domestic authorities’ procedural obligation as regards the applicants’ allegations of indecent sexual acts by O.B. falls within the scope of Article 8 of the Convention.

A.  Admissibility

1.  Abuse of the right of individual application

(a)  The parties’ submissions

117.  At the outset, the Government - relying on Article 35 § 3 (a) of the Convention and Rule 47 § 6 of the Rules of Court (Rule 47 § 6 until 6 May 2013, currently Rule 47 § 7) - invited the Court to reject the present application as abusive.

118.  They argued that the applicants had failed to disclose to the Court the information about civil proceedings against the coach, O.B., including the first instance judgment (see paragraphs 90 et seq. above). In the Government’s view these civil proceedings were closely related to the subject matter of the applicants’ complaints before the Court, which had been prevented from adopting an informed decision prior to its communication of the application to the Government.

119.  Moreover, the applicants had not sufficiently explained their failure to disclose the said information.

120.  In response to the Government’s allegation of an abuse, the applicants’ counsel agreed that the civil claim against O.B. had been lodged prior to their application to the Court. She added that the application to the Court had been made within six months of the final decision in the criminal proceedings.

(b)  The Court’s assessment

121.  Concerning the Government’s argument of abuse, the Court reiterates that the submission of incomplete and thus misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further case-law references).

122.  The same applies if new, important developments have occurred during the proceedings before the Court and the applicant, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (ibid.).

123.  As to the civil proceedings against O.B., the Court has indeed accepted that in respect of less serious acts between individuals, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection could also consist of civil-law remedies (see Söderman, cited above, § 85). In that light, the counsel’s failure to disclose to the Court the information about civil proceedings against O.B. is problematic.

124.  At the same time, the Court notes that the applicants’ complaints before it were directed specifically at a criminal investigation by the State authorities into the applicants’ allegations of indecent sexual acts perpetrated by O.B. The civil proceedings against O.B. were different in their judicial character, and they are not decisive for examination of the complaints pursued by the applicants before the Court.

125.  In that light, the Court is unable to conclude with sufficient certainty that the applicants failed to provide the said information with the intention of misleading the Court.

126.  Accordingly, the Court does not find it appropriate to declare the application inadmissible as abusive within the meaning of Article 35 § 3 (a) of the Convention.

2.  Victim status

(a)  The parties’ submissions

127.  The Government maintained that the applicants could no longer claim under Article 34 of the Convention to be the victims of a violation of Article 8.

128.  The Government pointed out that the civil courts in the first instance proceedings against O.B. had expressly acknowledged a breach of the applicants’ rights and had redressed the situation by awarding them compensation. The applicants had not appealed against that first instance judgment, which indicated their satisfaction with it.

129.  However, the applicants’ counsel contested that the applicants’ grievances had been remedied by the civil proceedings against O.B. She argued that a civil action could not result in a punishment comparable to that in criminal proceedings. If O.B. had received a criminal-law penalty he would not have been able to continue coaching minors. Civil proceedings, on the other hand, could not exclude similar occurrences in the future.

(b)  The Court’s assessment

130.  The Court finds that the question raised by the Government as to whether the applicants may still claim to be the victims of a violation of Article 8 in respect of the alleged inadequate criminal investigation conducted by the State authorities, where the possibility of civil-law proceedings also existed, is closely linked to the question of whether in the present case it was only by way of a criminal investigation that the State could meet its positive obligation under Article 8.

131.  The Court therefore decides to join the Government’s objection of a lack of victim status to the merits and will examine it further below.

3.  Conclusion

132.  The Court considers that the applicants’ complaints raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares the applicants’ complaints admissible.

B.  Merits

1.  The parties’ arguments

(a)  The applicants

133.  It was pleaded on behalf of the applicants that the investigation into the alleged indecent sexual acts perpetrated against them by O.B. had not been effective.

134.  In the application to the Court, the applicants’ counsel submitted that the investigating authorities had not interviewed all students who had attended the sauna. Also, the investigator, T.M., had not questioned the sports school’s doctor, S.K., as requested by the first and second applicants’ mother, who had learnt from S.K. that the sauna used by O.B. had been old and unhygienic and had not been recommended for children. Moreover, the investigator had not taken the statements from the boys who had travelled with the third applicant and O.B. to Lithuania. The events in Lithuania had been fully ignored.

135.  The investigator’s conclusion that the girls had voluntarily undressed for the sauna was incorrect. When the second applicant, aged fourteen at the time, had attended the sauna half-undressed, O.B. had startled her by entering the sauna without warning. Instead of apologising and leaving immediately, he had ridiculed her and had pressurised her to undress. The second applicant never did attend the sauna undressed fully, because she talked to her parents in the meantime. Also, according to the first and third applicants, O.B. had pressurised the students into attending the sauna naked by alleging that wearing swimsuits in the sauna was unhealthy. The psychologist’s report ordered by the police had not concluded that the applicants had undressed voluntarily. On the contrary, it emerged that they had been manipulated and that the first and third applicants had been unable to resist due to their personality. These aspects had been disregarded by the investigator, T.M. The reasons which had led O.B.’s under-age students to undress for the sauna had not been examined.

136.  Moreover, the investigating authorities had not considered the circumstance that the girls had been dependent upon and subordinated to O.B. and therefore had been unable to defy him. They had been taught to obey their coach and had listened to him. The children, below the age of eighteen, had been handed into O.B.’s care as coach. Everything had taken place under his direction.

137.  The investigating authorities had, furthermore, disregarded the fact that O.B. had touched the girls’ intimate body parts during massages and when entering their changing room. The second applicant had seen O.B. laying the third applicant on her back and massaging one of her legs while holding it up. As the girls could have massaged their legs themselves, it was evident that in this case the girl’s body had been used for a sexual purpose. It also emerged that none of the girls’ parents had been aware of O.B. massaging their daughters naked in sauna.

138.  It was further argued that the investigator, T.M., had not attempted to find out O.B.’s motive in pressurising the girls to undress for the sauna and touching their intimate body parts during massages. The coach had not suggested that the girls wear cotton underwear in the sauna. None of the other sport school’s coaches had massaged girls naked. No psychiatric report had been ordered for O.B.

139.  Lastly, the report by the psychologist K.V. had not been taken into consideration, in particular as regards the consequences suffered by the applicants.

(b)  The Government

140.  The Government referred to the Court’s finding in the case of M. and C. v. Romania (no. 29032/04, § 111, 27 September 2011), pointing out that States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing sexual abuse of children and to apply them in practice through effective investigation and prosecution. However, only serious offences such as rape and violent physical and sexual abuse of minors by private individuals raised the State’s positive obligation under Articles 3 and 8 and extended it to include the requirement of an effective criminal investigation. In support of this argument the Government relied on M.C. v. Bulgaria (no. 39272/98, ECHR 2003-XII); C.A.S. and C.S. v. Romania (no. 26692/05, 20 March 2012); and M. and C. v. Romania (cited above). The present case in the Government’s view concerned entirely different factual circumstances.

141.  O.B.’s behaviour had not reached the threshold of criminal sexual assault within the meaning of the Court’s case-law, which related to the most appalling examples of child abuse. Neither did it fall within the notion of “sexual abuse” under the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, which left the term “sexual activities” undefined (see paragraphs 112 and 113 above). At the same time, the “sexual abuse” had to be committed intentionally for there to be a criminal liability. That approach was followed in the Criminal Law, under the provisions of which O.B.’s conduct had not constituted a crime.

142.  The Government argued that the allegations against O.B. had been brought before the State police more than two years after the disputed events. The investigation had been opened the same day. There had been conflicting versions and a complete lack of direct evidence. The State police had obtained testimonies from everyone who had any direct or indirect information relevant to the case, including the applicants and the sports school’s students and staff. Every facet thus had been examined. Also, a psychologist’s report had been ordered. In particular, with regard to the applicants’ argument that O.B. should be punished, the Government emphasised that the obligation to investigate was not an obligation as to results but as to means.

143.  As regards the psychologist’s report obtained by the applicants’ parents, the Government submitted that it had pursued an aim and employed a method different from those encompassed by the police-ordered report. The former had been conducted at the expense of the applicants’ parents, whereas the latter had aimed to answer the questions posed by the investigating authority. What is more, the conclusions of the psychologist engaged by the applicants’ parents had been obtained after the investigation by the State police had been concluded. This aspect and the delay of almost ten months between the criminal complaint and the parents’ decision to obtain their own psychologist’s report had undermined that action’s credibility and effectiveness.

144.  The Government disputed that the national authorities had failed to take note of the psychologist’s report furnished by the applicants’ parents. Even though it had been produced after the investigation by the State police had been closed, the prosecution service had familiarised themselves with it and had reflected it in their decisions.

145.  The aforementioned psychologist’s report could not have contributed to the reopening of the criminal proceedings. This is because the Criminal Law required that the offence be committed intentionally, whereas the report had only suggested that the applicants exhibited the symptoms of psychological trauma. The report had, furthermore, been delivered three and a half years after the events in question. Even if the applicants had suffered a traumatic experience in November 2011, it could have been triggered by other factors, such as peer or parental pressure, contact with investigating authorities or psychiatric examination. Also, no such symptoms had been evident in the earlier psychologist’s report, delivered more than two years after the events in issue.

146.  As regards civil-law remedies, the Government pointed out the proceedings against O.B., and, by reference to Blumberga v. Latvia (no. 70930/01, 14 October 2008), argued that if the applicants had considered the criminal investigation to be ineffective, it was incumbent on them to pursue civil proceedings. The outcome of the criminal proceedings was not determinative for their success. In that regard they also referred to Y v. Latvia (no. 61183/08, § 71, 21 October 2014). The fact that the applicants had not appealed against the first instance judgment indicated that they had been satisfied with the sums awarded. The civil proceedings had afforded sufficient protection of the applicants’ right to respect for private life, as required by Article 8 of the Convention.

2.  The Court’s assessment

(a)  General principles

147.  The Court reiterates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Söderman, cited above, § 78, with further references).

The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue. Where a particularly important facet of an individual’s existence or identity is at stake, or where the activities at stake involve a most intimate aspect of private life, the margin allowed to the State is correspondingly narrowed (see ibid., § 79, with further references).

148.  Regarding, more specifically, serious acts such as rape and sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls upon the member States to ensure that efficient criminal-law provisions are in place (see, for example, X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91, and M.C. v. Bulgaria, cited above, § 150). This obligation stems also from other international instruments, such as, inter alia, Articles 19 and 34 of the United Nations Convention on the Rights of the Child and Chapter VI, “Substantive criminal law”, of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (see paragraphs 110 and 112 above) (see Söderman, cited above, § 82).

149.  Concerning such serious acts, the State’s positive obligation under Articles 3 and 8 to safeguard the individual’s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, among other authorities, C.A.S. and C.S. v. Romania, cited above, § 72; M.P. and Others v. Bulgaria, no. 22457/08, §§ 109 and 110, 15 November 2011; and M.C. v. Bulgaria, cited above, § 152) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, C.A.S. and C.S. v. Romania, cited above, § 72), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007, and Szula v. the United Kingdom (dec.), no. 18727/06, 4 January 2007).

150.  As to acts which do not attain the seriousness of those at issue in X and Y v. the Netherlands (cited above) and M.C. v Bulgaria (cited above), the Court has examined under Article 8 the State’s obligation to protect, for example, a minor against malicious misrepresentation (see K.U. v. Finland, no. 2872/02, §§ 45-49, ECHR 2008). The act in that case did not involve any physical violence, but could not be considered trivial as it entailed a potential threat to the minor’s physical and mental welfare, brought about by the impugned situation, namely that he had been made a target for approaches by paedophiles. The act constituted a criminal offence under domestic law and the Court considered that practical and effective protection of the applicant required the availability of a remedy enabling the actual offender to be identified and brought to justice.

151.  More generally, however, in respect of less serious acts between individuals which may nonetheless violate psychological integrity, the obligation of the State under Article 8 to maintain and implement an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see Söderman, cited above, § 85, with further references).

(b)  Application in the present case

152.  There is no dispute between the parties as to the applicability of Article 8. The facts allegedly underlying the complaints concern the issue of “private life”, a concept which covers the physical and moral integrity of the person. The Court further notes that the applicants were below the age of majority at the material time and the alleged incidents took place in the course of their coaching by O.B., to whom the applicants had been entrusted by their parents.

153.  It is worth noting that while the applicants did not complain of a lack of legal framework affording protection against acts allegedly committed by O.B., they argued that the State had not complied with its obligation to conduct an effective criminal investigation. They submitted that civil proceedings against O.B. were insufficient and contended that an effective criminal investigation was the only way that the State could fulfil its positive obligation under Article 8.

154.  Further to these preliminary observations, the Court will proceed to examine whether, in the specific circumstances of the case before it, the State was required under Article 8 to ensure an effective criminal investigation. As the acts at issue were of differing seriousness and thus affected the applicants’ intimate aspects of private life to varying degrees, the Court will assess the said matter in relation to each set of circumstances.

(i)  Acts concerning the second applicant, O.B.’s entering the changing room and events in Lithuania

155.  The Court points out that in Söderman (cited above) it did not consider that the stepfather’s attempting to film his stepdaughter - who was aged fourteen at the material time - in the bathroom naked attained the seriousness of the grave acts in the Court’s case-law involving the rape and sexual abuse of children, considered not only under Article 8 but also Article 3 of the Convention (ibid, cited above, § 86 in fine). While in Söderman (cited above) the Court addressed the existence of an adequate legal framework providing the stepdaughter with protection against her stepfather’s conduct rather than the requirement for criminal investigation of such conduct (ibid, cited above, §§ 88 and 89) - which is the aspect the Court is concerned with in the present case - it is notable that in Söderman (cited above) the Court found that recourse to the criminal law was not necessarily the only way that the respondent State could fulfil its obligation under Article 8 (ibid, cited above, § 108). The incident in that case could in fact also be addressed outside the criminal justice framework (ibid., §§ 108 et seq., where the Court considered the existence of appropriate civil-law remedies). Since in the present case the applicants are seeking an effective criminal investigation, that is to say, for their allegations to be dealt with through the criminal justice mechanism, the Court’s assessment of the situation in Söderman (cited above) is of relevance here.

156.  With regard to O.B.’s alleged conduct vis à vis the third applicant during their trip to Lithuania, the Court observes that - as in Söderman (cited above, § 86) - it did not involve any physical violence or abuse. The third applicant did not allege to the investigating authorities that O.B. had touched her in a sexual manner (see paragraphs 34 and 35 above). As to O.B.’s entering the changing room, the applicants had claimed that he had, as if by accident, touched the girls on their intimate body parts. The second applicant claimed that she had prevented O.B. from touching her and did not allege that she had been massaged by him.

157.  With regard to the above-mentioned incidents, the Court is unable to discern any alleged conduct on the part of O.B. of such gravity that an effective criminal investigation would be the only way for the State to fulfil its positive obligation under Article 8 of the Convention. The Court reaches the same conclusion as regards the second applicant’s allegation that O.B. had entered the sauna when she had been half-undressed and had ridiculed her.

158.  The Court therefore concludes that there has been no breach of Article 8 on that account. In the view of this finding, the Court deems it unnecessary to examine the Government’s objection of the lack of victim status in relation to the above-mentioned events.

(ii)  The first and third applicants’ attendance of the sauna and their massaging by O.B.

159.  The situation with regard to the first and third applicants’ attendance of the sauna and their massaging by O.B. is different, however. While these incidents did not attain the seriousness of X and Y v. the Netherlands (cited above), in which a breach of Article 8 arose from the lack of an effective criminal sanction in respect of the rape of a girl with disabilities, they cannot be treated as trivial (see, mutatis mutandis, K.U. v. Finland, cited above, § 45).

160.  The allegations triggered a criminal investigation under section 162 of the Criminal Law (sexual abuse). They concerned under-age girls who had been exposed naked in front of an adult male who was thus able to observe their intimate body parts during massages in the sauna. O.B. himself described the massage procedure as involving the lifting up of one or both legs (see paragraph 46 above). The first applicant submitted that O.B. had touched her between her legs (see paragraph 37 above). The second applicant attested to O.B.’s massaging the third applicant in the sauna (see paragraph 27 above). The above-mentioned allegations therefore concerned intimate aspects of the first and third applicants’ private lives.

161.  The Court in particular attaches importance to the fact that the incidents took place in the context of a relationship of trust and authority resulting from O.B.’s position as an educator with respect to the applicants, who were vulnerable persons due to their young age. Also, as acknowledged by the domestic courts it was not a tradition in Latvia to appear naked - even in the sauna - in front of opposite sex, and massaging naked girls with a besom had been unethical and in contravention of general moral principles (see paragraph 95 above). The incidents in issue were even of greater seriousness and the police considered that a criminal investigation was required.

162.  Mindful of the seriousness of the case and that it might have fallen under section 162 of the Criminal Law, the Court takes the view that the State was required under Article 8 to put that criminal-law provision into practice through the conduct of an effective investigation.

163.  As to the Government’s argument concerning the civil proceedings, effective deterrence of the acts such as those alleged in the present case is indispensable and it can be achieved only by applying criminal-law provisions in practice through the conduct of an effective investigation (see, mutatis mutandis, K.U. v. Finland, cited above, § 43, and Remetin v. Croatia, no. 29525/10, § 76, 11 December 2012).

164.  It follows that the Government’s objection formulated as the lack of victim status must be rejected. For the same reasons the Court is unable to accept the Government’s argument that, if the applicants found the criminal investigation to be ineffective, it was incumbent on them to pursue civil proceedings (see paragraph 146 above).

165.  Turning next to the criminal investigation conducted by the domestic authorities, the Court reiterates that it is not concerned with allegations of errors or isolated omissions in the investigation; that it cannot replace the domestic authorities in the assessment of the facts of the case; and that it cannot make any decision as to the alleged perpetrator’s criminal responsibility. It was for the authorities to explore all the facts and reach a decision on the basis of an assessment of all the surrounding circumstances (see C.A.S. and C.S. v. Romania, cited above § 77).

166.  As regards the steps taken by the Latvian authorities, the Court observes that the police opened criminal investigation on the day the alleged crime was brought to their attention (see paragraphs 14 and 15 above). Soon after, they apprehended and questioned O.B. as a suspect (see paragraph 44 above). From January to August 2010 they questioned numerous witnesses (see paragraphs 50-58 above), including the applicants who were granted the status of injured parties in the proceedings (see paragraph 22 above), and ordered the psychologist’s report (see paragraph 36 above).

167.  In so far as the first and third applicants argued that the investigating authorities did not question the sports school’s doctor S.K. or that they did not consider the report by the psychologist K.V., the Court notes that an important issue of the investigation was whether O.B. had acted with a sexual purpose, an element required under section 162 of the Criminal Law (see paragraphs 61, 69, 75 and 84 above). The Court is not persuaded that the evidence noted by the applicants could have changed the assessment as regards the mental element of the alleged crime. In particular, the applicants submitted that S.K. could have given evidence in relation to the poor state of the sauna (see paragraph 134 above), and the report by K.V. assessed the consequences caused to the applicants, namely, that the first applicant had suffered psychological trauma and the third applicant exhibited possible post-traumatic stress symptoms (see paragraphs 66, 86, 88 and 139 above).

168.  It is true that the investigating authorities did not question A.F. and A.B., who according to the applicants had attended the sauna (see paragraph 29 above). At the same time, the mother of A.F. stated that according to A.F. the coach had not harassed the girls and that she had undressed for the sauna following the example of the other girls (see paragraph 53 above), and from the evidence furnished to the Court it emerged that A.B. was a relative of the coach (see paragraph 29 above).

169.  The investigating authorities questioned the other two students who according to the applicants had attended the sauna, V.A. and K.D. It emerged however that V.A. had attended the sauna only a couple of times (see paragraphs 29 and 51 above), and K.D. stated that she had trained with O.B. until 2008 (see paragraph 52 above). The statements from other students or their parents did not produce any leads as regards the mental element of the alleged crime.

170.  While the Latvian authorities therefore faced a difficult task, as they were confronted with two conflicting versions of the events and little direct evidence, the Court is unable to discern that they failed to take the reasonable steps available to them to obtain evidence concerning the alleged incidents. Also, their reaction to the complaint was prompt; no delays emerged in identifying witnesses, taking statements or obtaining the psychologist’s report.

171.  Having regard to the evidence collected, the investigator concluded that there was no case to answer (see paragraphs 59-61 above). This conclusion was subsequently affirmed by the prosecution service (see paragraphs 67-70, 74-76, and 83-85 above). The Court in particular notes that they could not establish that O.B. had acted with a sexual purpose.

172.  In so far as the first and third applicants argued that the investigator and the prosecution service had incorrectly assessed O.B.’s motive, the Court reiterates that, as a general rule, it is for the domestic authorities to assess the evidence before them. The Court, having examined the documents in its possession, finds no reason to doubt the assessment by the investigator or the prosecution service.

173.  In view of the foregoing and being mindful of its subsidiary role the Court is unable to conclude that the investigation into the allegations of the first and third applicants concerning their attendance of the sauna and their massaging by O.B. revealed significant shortcomings (see regarding the “significant flaw” test for the State’s positive obligation of investigation Söderman, cited above, § 90).

174.  The Latvian authorities therefore met their positive obligation to conduct an effective investigation in that regard and to ensure adequate protection of the first and third applicants’ private life.

175.  There has accordingly been no violation of Article 8 of the Convention in respect of the first and third applicants.

FOR THESE REASONS, THE COURT

1.  Decides, unanimously, to join to the merits the Government’s objection of the lack of victim status, and dismisses it as regards the first and third applicants’ complaints concerning the lack of an effective criminal investigation into their attendance of the sauna and their massaging by O.B.;

 

2.  Declares, unanimously, the complaints under Article 8 of the Convention admissible;

 

3.  Holds, by five votes to two, that there has been no violation of Article 8 of the Convention and that there is no need to examine the Government’s objection of lack of victim status as regards:

-  the second applicant’s complaint about the lack of an effective criminal investigation;

-  the first and third applicants’ complaints about the lack of an effective criminal investigation into O.B.’s entering the changing room; and

-  the third applicant’s complaint about the lack of an effective criminal investigation into the events in Lithuania;

 

4.  Holds, by five votes to two, that there has been no violation of Article 8 of the Convention as regards the first and third applicants on account of the lack of an effective criminal investigation into their attendance of the sauna and their massaging by O.B.

 

Done in English, and notified in writing on 31 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek                                                           Angelika Nuβberger
       Registrar                                                                              President

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Grozev and Mits are annexed to this judgment.

A.N.
C.W.




DISSENTING OPINION OF JUDGE GROZEV

While I agree with the approach taken in defining the applicable Convention principles in the present case, to my regret I am not able to follow the majority in its analysis of the specific circumstances and the conclusion that there has been no violation of Article 8.

In the present case there was no obligation on the respondent State to provide a criminal-law, as distinct from a civil-law, remedy. The Court is justified in reviewing the complaints of the applicants from the perspective of Article 8 and not of Article 3, and there is no justification in the Court’s case-law for an obligation to provide a criminal-law remedy under Article 8. Even in the context of allegations of sexual assault, the Court has left some room for flexibility as to the appropriate remedy. As far back as its judgment in X and Y v. the Netherlands the Court held that, when it comes to providing protection of rights guaranteed under Article 8, “there are different ways of ensuring ‘respect for private life’, and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue. Recourse to the criminal law is not necessarily the only answer” (see X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91). Where the right allegedly infringed is not one of a person’s physical integrity but one of personal autonomy, as in the present case, the freedom which respondent States enjoy in choosing the appropriate remedy is in my view indisputable. In the present case Article 8 is applicable, and only at the lower end of it spectrum - if one can borrow from Article 3 this approach to defining the level of severity of the interference - and thus the option of providing a non-criminal remedy could not be denied to the respondent State.

While under Article 8 States have the freedom to choose the system of protection they consider most appropriate for the specific offence, that system should nevertheless provide the requisite protection, taking into account “the particular aspect of private life that is at issue”. Even though the alleged incidents complained of in the present case did not entail violence, they do qualify as sexual abuse, being “psychologically intrusive ... and traumatic”, to use the language of the UN Committee on the Rights of the Child. Thus, the special requirements developed in this field of international law regarding the need for the available procedure to be child-centred and child-sensitive should definitely apply. And the remedy provided by the respondent State should certainly, by definition, allow all the relevant evidence to be collected and demonstrably reviewed precisely from that child-sensitive perspective.

The respondent State in the present case has chosen to build its system by relying primarily on criminal law, with general civil law playing a subordinate role. It is clear in the present case that the criminal proceedings were the primary proceedings for the collection of evidence, with the subsequent civil proceedings apparently relying on the evidence thus collected. This inevitably places the focus of the analysis as to whether the applicants were afforded effective protection on the criminal investigation, without excluding the possibility that the civil lawsuit might have remedied certain shortcomings in the criminal investigation. In any case, the two sets of proceedings taken as a whole should be assessed as to whether they addressed sufficiently the core of the applicants’ complaint, namely that they had been compelled to parade themselves naked and be massaged by an adult man. It is precisely on this question, whether the criminal investigation combined with the subsequent civil lawsuit addressed the relevant issues with sufficient thoroughness and provided clear and satisfactory answers, that I part with the majority.

In the course of the domestic proceedings strong evidence was collected that the applicants had been compelled to attend the sauna naked and be massaged by their coach. Both their statements (see paragraphs 24 et seq. of the judgment) and the psychological report (see paragraphs 37 et seq.) clearly attest to that. Circumstantial evidence, like the age of the applicants, the fact that their coach was in a strong position of authority and the fact that boys were attending the sauna in their swimsuits, was also relevant. Given the subject of the complaint, the national remedy or remedies should have focused on the issue of consent, and the evidence should have been assessed from this perspective. In my view, however, neither the criminal proceedings nor the subsequent civil proceedings provided a satisfactory assessment of the applicants’ consent or lack thereof. The criminal investigation seems to have only briefly touched upon the issue, choosing instead to focus on the subjective issue, that is, the state of mind of the coach and whether he acted with a “sexual purpose” as this term was defined by national law. The lack of such “sexual purpose” seems to have been decisive for the termination of the criminal proceedings. As to the consent of the applicants, while the investigation did not challenge the veracity of their statements it reached a conclusion directly opposed to those statements, namely that the applicants had voluntarily attended the sauna naked and had voluntarily requested to be massaged naked. There was no effort to resolve and/or explain this apparent contradiction between this finding and the statements of the applicants and the other evidence. Crucially, there was no effort to address the key issue of the coach being in a position of authority over the applicants. This failure to address the issue which, from the perspective of Article 8 of the Convention, was central, was not remedied by the civil proceedings either. The civil court explicitly rejected the argument that the applicants’ decision to attend the sauna had been influenced by their coach, again without an analysis of the available evidence, and it relied in awarding damages on the more general notion that such a practice was unethical and in contravention of general moral principles. As a result, taken as a whole, the two sets of proceedings did not provide sufficient protection of the applicants’ right to personal autonomy as a component of the right to respect for private life guaranteed by Article 8.


DISSENTING OPINION OF JUDGE MITS

I agree with the majority that the facts of the case triggered an obligation on the part of the domestic authorities to carry out a criminal investigation, but, regretfully, I cannot agree with the conclusion that the investigation was effective.

I.  Obligation to carry out a criminal investigation

1.  There are not many cases with their focus on a possible obligation under Article 8 of the Convention to conduct a criminal investigation. While there is a rich body of case-law on the obligation to carry out an effective criminal investigation with the aim of establishing the facts and punishing the perpetrators when the alleged acts, even if committed by private persons, have reached the threshold of Article 3 (see, among other authorities, M.C. v. Bulgaria, no. 39272/98, §§ 151 and 153, ECHR 2003-XII, and C.A.S. and C.S. v. Romania, no. 26692/05, § 70, 20 March 2012), there are far fewer cases where the facts fall exclusively within the scope of Article 8 and concern minors. These situations require a nuanced assessment.

2.  The Court has acknowledged that there can exist obligations specifically of a criminal-law character under Article 8, including an obligation to carry out an effective investigation. In K.U. v. Finland, which concerned the creation of a fake profile on the Internet, thus making a minor a target for approaches by paedophiles, the Court considered that the act, although it did not involve any physical violence, could not be considered trivial as it involved a potential threat to a minor’s physical and mental welfare and required a remedy under criminal law enabling the offender to be identified and brought to justice (see K.U. v. Finland, no. 2872/02, §§ 45-47, ECHR 2008). In Remetin v. Croatia a minor had been slapped and kicked by an adult and the Court, noting that the minor belonged to the group of “vulnerable individuals”, considered that such acts of violence required the adoption of positive measures in the sphere of criminal law and effective application of the criminal-law mechanism (see Remetin v. Croatia, no. 29525/10, § 91, 11 December 2012). In both cases the domestic law criminalised the alleged acts, but the State’s obligations of a criminal-law character were established irrespective of the availability of remedies under civil law.

3.  The Court has also held that when acts committed between individuals are less serious than those mentioned above, but may still violate a person’s psychological integrity, the obligations under Article 8 do not always require the existence of an efficient criminal-law framework; the legal framework may consist also of civil-law remedies (see Söderman v. Sweden ([GC], no. 5786/08, § 85, ECHR 2013). In Söderman,  a stepfather had attempted the covert filming of his stepdaughter in the shower. The Court, noting that the applicant had not claimed that recourse to criminal law was the only way for the State to fulfil its obligations under Article 8, and that the State had complied with its obligation of effective prosecution as far as applicable (the alleged act did not constitute a criminal offence under domestic law as then in force), proceeded with the assessment of the entire legal framework. The principle that civil-law remedies may suffice under Article 8 in the case of less serious instances of interference was established a long time ago (see, mutatis mutandis, X and Y v. the Netherlands, no. 8978/80, §§ 24 and 27, Series A no. 91).

It can be concluded that there might be situations falling exclusively within the scope of Article 8 that trigger an obligation for the State to provide an efficient criminal-law framework, including an effective investigation, and situations that do not require the application of a legal framework of an exclusively criminal-law character.

4.  As can be seen from the cases examined in paragraph 2 above, in order to trigger obligations of a criminal-law character under Article 8, the alleged act has to attain a certain degree of seriousness (or not be trivial), and it must pose a potential threat to (or already have had an effect on) the minor’s physical and mental welfare.

5.  Returning to the facts of the case, the majority distinguished between the events concerning the second applicant and those that occurred in the changing room and in Lithuania on the one hand, and the events concerning the sauna on the other hand. The former events were found not to be serious enough to trigger an obligation to conduct a criminal investigation (see paragraph 157 of the judgment), whereas the latter events were said to be serious and potentially punishable under domestic criminal law (see paragraph 162). Hence, effective deterrence of such acts could be achieved only by applying the domestic criminal law through the conduct of an effective investigation (see paragraph 163 of the judgment).

6.  I readily share the view of the majority that the events in the sauna, as described in paragraphs 159-161 of the judgment, cannot be regarded as trivial. It must be emphasised that appearing naked in front of a person of the opposite sex is not considered an acceptable part of sauna culture in Latvia. Moreover, there is a context involving a relationship of trust and authority between a coach and young female persons aged between thirteen and sixteen which makes the minors particularly vulnerable to influences from someone who represents authority in their eyes. Furthermore, personalities at this age are undergoing an active process of formation. The psychologist’s report ordered by the police more than a year after the events noted that all three applicants felt anger and had either unpleasant feelings or feelings of guilt concerning the events involving their coach, and that the first applicant had become distrustful in her communication with older men (see paragraph 42 of the judgment).

7.  It must be noted that in the present case the alleged acts had an effect only on the mental and not on the physical welfare of the minors. There are good reasons for accepting this fact in the specific circumstances of the case.

8.  In addition, the police deemed the allegations of sexual abuse serious enough to start a criminal investigation under Article 162 of the Criminal Law. This provision contained an offence of sexual abuse, and the Supreme Court had explained that sexual abuse could be intellectual or physical and could be committed, for example, by compelling a person to expose his or her body (see paragraph 106 of the judgment).

Therefore, the events in the sauna triggered an obligation for the domestic authorities to conduct an effective criminal investigation.

II.  Whether the criminal investigation was effective

9.  The European Convention on Human Rights must be interpreted taking into account the rules of international law, including, as far as possible, other international human rights treaties. The rights of the child form a backdrop to the present case, and, among various international instruments, Article 19 of the UN Convention on the Rights of the Child imposes an obligation of prevention and investigation of instances of, inter alia, sexual abuse. The UN Committee on the Rights of the Child, in paragraph 51 of its General Comment No. 13 (2011), points out that the investigation of instances of violence (which includes any form of sexual abuse) should be undertaken by qualified professionals who have received role-specific and comprehensive training, and should have a child rights-based approach; the investigation procedures should be rigorous and child-sensitive so that they help to correctly identify, inter alia, sexual abuse (see paragraph 111 of the judgment). The underlying idea is that cases involving violence against children, including sexual abuse, have specific features and professionals have to be trained to deal with them properly.

10.  While there is not an extensive body of case-law in the sphere of the rights of the child, the Court has acknowledged when dealing with sexual violence against a minor that the investigation has to be rigorous and child-sensitive and that the facts have to be established by engaging in a context-sensitive assessment (see C.A.S. and C.S. v. Romania, cited above, § 78). In that case, this was done within the scope of Articles 3 and 8 taken together; however, the procedural obligation to conduct an effective investigation should have the same content under Articles 3 and 8 when assessed separately, since there can be no logical explanation for applying different standards to the procedural obligation to investigate, requiring the investigation to be more or less effective depending on the Article under which the situation is examined.

11.  This means that the “significant flaw” test traditionally used to assess the effectiveness of the criminal investigation in situations where minors are concerned has to include an evaluation of whether the investigation was rigorous, child-sensitive and context-sensitive, that is, it has to take into account the specific context involving minors. When applying this test to the facts of the case I cannot arrive at the conclusion of the majority that the investigation did not reveal significant shortcomings (see paragraph 173 of the judgment).

12.  The investigation, inter alia, failed to examine:

(i) the reasons for attending the sauna naked, in particular in the context of the relationship of trust and authority that existed between the students and their coach (see paragraphs 60, 24 and 28 of the judgment);

(ii) the contradictions in the statements by O.B. concerning his students’ attendance of the sauna naked (see paragraph 45);

(iii) whether indeed, and if so, why, boys did not attend the sauna naked (see paragraph 57);

(iv) the relevance of the context, that is to say, other events potentially pointing to a sexual interest shown by O.B. (such as events in Lithuania, entering the changing room and touching students, massaging students).

In my opinion, these are all relevant factors for the assessment of whether O.B. acted with a sexual purpose - the absence of which was the reason for the closure of the investigation cited by the investigator (see paragraph 61 of the judgment) and later confirmed by the prosecutors. As a result, the case did not reach the domestic courts, the only authority that could rule on whether a crime was or was not committed under Article 162 of the Criminal Law.

13.  An observation must be made concerning the general situation in Latvia. As pointed out by the NGO “Dardedze” which specialises in matters of child abuse, one of the problems concerning violence against children in Latvia, including sexual abuse, at the time of the events was the conflicting and superficial application of the law by the law-enforcement authorities, including the termination of criminal proceedings in cases that required complicated investigation or assessment of the psychological harm to the victim. Insufficient knowledge on the part of the professionals of the character of sexual violence (including abuse) and its severe consequences were identified as being among the main causes of this problem[1].

14.  In view of the deficiencies listed in paragraph 12 above, I find that the investigation was neither rigorous nor context-sensitive. These deficiencies cannot be treated merely as errors or isolated omissions; they were significant as they were highly relevant to the question of sexual intent - the element that was at the heart of the decision to close the investigation. By not examining important aspects of this case the investigation revealed significant flaws (see Söderman, cited above, § 90).

Consequently, the Latvian authorities did not fulfil their positive obligation under Article 8 to conduct an effective criminal investigation with respect to the events in the sauna.

15.  Finally, I voted against finding no violation of Article 8 with respect to the other events, because I think that all the events as a whole should have been assessed in the context of the State’s positive obligation to conduct an effective criminal investigation.

 




---

1.  Overview of Violence Against the Child in Latvia within the framework of the project “Sexual Violence against Children in Residential Institutions”  (DAPHNE III 2007-2013 Program of the EC, NR. JLS/2007/DAP-1/178/-30-CE-0229207/00-68), 2009, p. 13, available in Latvian at:

http://www.centrsdardedze.lv/data/kampanas/S_02_Parskats_LV_lat%20(1).pdf