X and Others v. Bulgaria

Information Note on the Court’s case-law 225
January 2019
X and Others v. Bulgaria - 22457/16
Judgment 17.1.2019 [Section V]
Article 3
Effective investigation
Positive obligations
Allegations of sexual abuse in an orphanage not corroborated by the investigation file or the preventive measures implemented there: no violation
Article 8
Positive obligations
Article 8-1
Respect for private life
Allegations of sexual abuse in an orphanage not corroborated by the investigation file or the preventive measures implemented there: no violation
[This case was referred to the Grand Chamber on 24 June 2019]
Facts – The applicants, who were born in Bulgaria, are three under-age siblings. In June 2012, aged 12, 10 and 9 respectively, they were adopted by an Italian couple. In December 2012 the adoptive parents lodged a complaint with the Italian police concerning the sexual abuse of the children during their placement in an orphanage in Bulgaria. They contacted an investigative journalist, who subsequently published, in an Italian weekly publication, an article alleging that there had been a large-scale sexual abuse of children in the orphanage. The Italian authorities transmitted the complaint to the Bulgarian authorities. Meanwhile, Bulgarian media coverage of the Italian article had induced the National Child Welfare Agency to initiate an inquiry. The public prosecutor’s office also launched an investigation and gave discontinuance decisions on the grounds that the evidence gathered did not corroborate the allegations.
Law – Articles 3 and 8
(a)  Applicability – Their status as young children who had been deprived of parental care and been institutionalised had placed the applicants in a very vulnerable situation; in that context, the sexual abuse and violence of which they had complained were sufficiently serious to fall foul of Article 3 of the Convention. Since such abuse affected their physical and psychological integrity, which was an aspect of their “private life”, Article 8 was also applicable.
(b)  Compliance
(i)  The effectiveness of the investigation – The competent Bulgarian authorities had acted promptly and diligently on learning of the alleged facts, even without having received any formal complaint. They had also fully cooperated with the Italian authorities, keeping them abreast of the results of the investigation and taking into account the fresh evidence transmitted by those authorities. The periods of several months which had sometimes elapsed in communicating with the Italian Ministry of Justice did not appear excessive in the framework of intergovernmental cooperation and seemed unlikely to have jeopardised the investigation, which had been completed by that stage.
There was no reason to doubt the independence and impartiality of the National Child Welfare Agency: neither the Agency nor its staff had been implicated in the present case.
The police and the child welfare services had inspected the orphanage and had implemented a number of investigative measures, including checking the medical records of the children in the orphanage and interviewing staff members, children and other relevant persons about their lives in the orphanage and also about any possible abuse.
It was irrelevant to complain that the investigation had not begun with more discrete investigative measures (phone-tapping or undercover operations) since the applicants’ parents had themselves made the case public by contacting a journalist, the latter had contacted certain individuals involved in the case, and the article published in the Italian press had already been reprised by the Bulgarian media. As regards the lack of searches or seizures, the applicants’ representatives did not appear to have applied for any additional investigative measures.
It was not for the Court to draw its own conclusions from the factual evidence gathered by the domestic authorities or to take the latter’s place in assessing the credibility of the various witness statements. In the instant case the public prosecutor’s office had been faced with two contradictory versions of events. Even though no doubt could be cast on the genuineness of the applicants’ submissions, which the Italian psychologists and prosecutors had deemed credible, nonetheless: (i) those submissions, which formed the only direct evidence available, had been succinctly worded and provided few factual details, particularly in view of the youth of the applicants and their lack of knowledge of the Italian language when they had made their statements; (ii) the Bulgarian authorities had not been able to question the applicants; and (iii) there had been no medical certificate to corroborate the allegations of violence against them. Consequently, it had been neither arbitrary nor unreasonable for the authorities to conclude that the evidence available to them did not suggest that the alleged facts had been established.
Therefore the case did not disclose any blameworthy shortcomings or non-willingness on the part of the competent authorities to shed light on the events or to identify and prosecute those potentially responsible.
Nor could the applicants accuse the Bulgarian authorities of having failed to keep their legal representatives adequately informed of the progress of the investigations, since the National Child Welfare Agency and the prosecutor’s office had initiated their initial inquiries despite the fact that the adoptive parents had neither lodged any official complaint nor subsequently contacted the investigating authorities. As regards the investigation instigated at the request of the Italian authorities, even though its outcome had been transmitted to the latter after a delay of several months, and only after a reminder, the applicants’ parents had had the possibility of challenging the discontinuance decision, and the higher-level prosecutor’s office had duly considered their subsequent letter – forwarded by the Italian authorities – as constitutive of such a challenge.
(ii)  The duty to adopt protective measures – Various general measures had been adopted to ensure the safety of the children living in the orphanage: access by third persons to the orphanage was controlled; third persons and male employees only had access to the parts of the premises reserved for children where absolutely necessary and only if accompanied by a female member of staff; the children were regularly attended to by an outside general practitioner and by the orphanage psychologist; and they had access to a telephone and a hotline for children in danger.
As regards the duty to adopt measures to prevent ill-treatment in specific cases, the investigation had shown that the director of the orphanage, who had allegedly been alerted by the applicants’ parents, had not borne the forename indicated by the latter and that the staff member who had borne that forename denied ever having been informed of any incidents of that nature. Nor had the children’s files or the medical practitioner’s and orphanage psychologist’s statements disclosed any evidence of such abuse. The criminal investigation initiated following complaints from other children at the orphanage was irrelevant to the present case because the facts at issue were not similar. As regards the situations of other children adopted in Italy, even supposing that they were confirmed, there was nothing to suggest that the Bulgarian authorities had had cognisance of any acts of abuse committed against other children at the material time.
Conclusion: no violation (unanimously).
(See also the Factsheet on the Protection of minors)
 
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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