M.Y. AND E.C. v. CYPRUS
Inadmissible
Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. The applicants, M.Y. (“the first applicant”) and E.C. (“the second applicant”), are Cypriot nationals who were born in 2005 and 1977 respectively and live in Limassol. The second applicant is the mother of the first applicant and lodged the application with the Court on her own behalf and on behalf of her daughter. 2. The applicants were represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia. 4. The second applicant was married to the first applicant’s father, Y.Y. who is a police officer. When the first applicant was three weeks old, the second applicant left her husband because of what she considered to be unacceptable behaviour on his part. She took their daughter with her. 5. Their marriage was dissolved on 8 March 2006 by the Family Court of Limassol. 6. On 21 March 2006 the Family Court of Limassol granted Y.Y. contact rights. These did not include overnight stays. 7. A few months before March 2008, when the first applicant was nearly three years old, the second applicant started noticing certain changes in the child’s behaviour. At first, the second applicant was puzzled by these changes and then she started to worry. Gradually, the changes in the first applicant’s behaviour became more apparent especially after she had visited her father. In particular, the first applicant sought to kiss her mother on the mouth using her tongue. Every time the mother tried to discourage the child from doing so, the first applicant responded by telling her mother that the reason for doing this was to show her love and affection towards her. For example she would say: “Mum you should not be shy because I love you”. 8. On or about 30 March 2008 the father, whilst exercising his contact rights, took the first applicant to his lodgings, a small room next to his parents’ house. That day the second applicant was told by his parents that Y.Y. had spent the whole day with the child locked up. The second applicant called Y.Y. on his mobile phone numerous times but he would not answer. Y.Y. returned the first applicant that night. The first applicant started behaving in an alarming manner, namely in a sexual manner. In particular the second applicant had bathed her daughter, put her to bed and sat beside her in order to read her a bedtime story. Then, the first applicant started licking her mother’s shoulder. When the second applicant disapproved of it, the first applicant told her that this was exactly what the father did to her. The second applicant called her own mother immediately to the bedroom and in her presence told the first applicant to show her the way her father licked her. The first applicant then showed the second applicant and her grandmother how the father licked her body. She told them that her father licked her breasts, legs and genitals. She later told her grandmother that her father licked her because she liked it. 9. On 31 March 2008 the second applicant filed a complaint with the Limassol District Welfare Office (“the Welfare Office”) against Y.Y. for molesting their daughter. The welfare officer informed her of the procedures, the need to immediately report the incident to the police and to refer the child for a psychological and medical examination. 10. On 2 April 2008 the welfare officer reported the matter to the Polemidia Police Station and to the Child and Adolescent Psychiatry Department. With the second applicant’s consent, a meeting was arranged for the applicants with a government clinical psychologist on 11 April 2008. 11. In or about the same period the second applicant observed that her daughter displayed the same sexual behaviour several times especially when playing. In particular, when playing with her favourite doll the first applicant would kiss the doll on the mouth, lick and kiss the doll’s body, and more specifically the breasts and the area of the genitals. Furthermore, at about the same time, the second applicant was informed by the teacher at the nursery school that the first applicant was behaving strangely and stubbornly refused to allow any of the staff to touch her when trying to change her nappies after her afternoon nap. 12. On 9 April 2008 the second applicant chose to meet with a private child psychiatrist E.D. According to the applicants and the subsequent report of E.D (see paragraph 27 below) this meeting was arranged because there was a delay of about ten days in securing the approval for an examination by a government doctor. As a result, the applicants did not meet with the government clinical psychologist (see paragraph 10 above). From the documents in the file it appears that the involvement of two experts was not considered advisable by the Welfare Services. 13. The next day E.D. met with Y.Y and on the same day she also had her first meeting with the first applicant with Y.Y.’s consent. Two more sessions were held on 15 and 16 April 2008 which were also attended by a clinical psychologist, M.K. The latter prepared a statement about what had occurred during the examination and, in particular, how the child had expressed herself to E.D. In this statement M.K. explained that it would be against professional ethics to take a position on the matter as she had not met with the parents or carried out an examination herself. 14. On 16 April 2008 E.D. informed the second applicant that the examination had shown that Y.Y. had sexually molested the first applicant. She also informed the Welfare Office. 15. On the same day, immediately after receiving this information, the second applicant filed a complaint of sexual molestation against Y.Y. at Polemidia Police Station. E.D. also gave to the police on the same day a statement together with her findings. 16. The second applicant then lodged an application with the Family Court of Limassol seeking to terminate any kind of communication between Y.Y. and the first applicant. She also applied for an interim order to suspend the court’s order of 21 March 2006, which gave him contact rights pending the examination of the main application and/or until a new order by the court (see paragraph 6 above). The interim order was granted on 30 October 2008. It appears that this became final on 16 April 2009. 17. The applicants claimed that the authorities did not also apply themselves for a court order to keep Y.Y. away from the first applicant as they normally did in cases of such a nature. 18. E.D. continued her meetings with the applicants. 19. In the meantime, Y.Y. made a request to the Welfare Office to have the first applicant examined by a government psychologist. By a letter dated 12 May 2008, the lawyers representing the applicants at the time informed the Welfare Office that although his request had been made at a very late stage and despite the fact that this delay would have a negative effect on the first applicant’s health, they would suggest to the second applicant that she should agree, assuming the examination would be carried out as soon as possible. They requested that the Welfare Office keep them informed of any developments. 20. By a letter dated 29 May 2008 addressed to the Welfare Office, the applicants’ lawyers expressed their concern about the slow pace at which the case was being investigated and, in particular, the delay in the examination of the first applicant by a government doctor and the harmful psychological repercussions a delayed examination would have on her. They requested that arrangements be made as soon as possible for the examination in order to minimise the effects on the first applicant. They also noted that Y.Y. had disappeared from the first applicant’s life despite recommendations that he meet with her in the presence of a welfare officer. They requested that appropriate measures be taken by the Welfare Office in this respect. 21. Between April 2008 and September 2008 the applicants’ lawyers called Polemidia Police Station as well as the police headquarters several times in order to find out if there were any developments in relation to the second applicant’s complaint and whether the police had taken any steps to examine the matter. 22. After the second applicant filed her complaint with the police, Y.Y. did not see the first applicant until 4 June 2008. On that date, the first applicant met her father at the Welfare Office in the presence of a welfare officer and E.D. This meeting had been requested by E.D. as the first applicant had reacted strongly to the absence of her father. 23. On 17 July 2008 Y.Y. went to the nursery school and, in the presence of all the children, including the first applicant, verbally abused the second applicant. 24. Following this incident Y.Y. did not make any attempt to communicate with the applicants. 25. By a letter dated 11 September 2008, the applicants’ lawyers requested the Chief of Police to inform them of any developments in the case. They requested a prompt response in view of the seriousness of the offence complained of, the time that had elapsed from the day the complaint had been made and the particularly young age of the child. 26. By a letter dated 12 September 2008, the Chief of Police informed them that he would be in touch soon. 27. On 18 September 2008 E.D. prepared a relevant report on the first applicant containing her findings and conclusions. 28. By a letter dated 19 September 2008, the applicants’ lawyers sent E.D.’s report to the Attorney-General to be examined along with the other evidence and statements already in his possession. The report was sent on the same day to the Limassol Welfare Office and the Chief of Police. 29. On 15 October 2008 the case-file was sent to the Limassol Police headquarters by the Attorney-General’s office with instructions that additional statements be taken from, inter alia, Y.Y, that a video recorded statement be taken from the first applicant and that she be referred to a government doctor for an examination. 30. By a letter dated 21 October 2008, the applicants’ lawyers complained to the Attorney-General about the procedure that had been followed in the case. They informed the Attorney-General that the second applicant, after having consulted with the child psychiatrist who was seeing the first applicant since April 2008, had decided not to give her consent to such statement and examination for a number of reasons, including the following: - video recorded statements were recommended in cases involving older persons who had the ability to develop a dialogue through the interrogation procedure; - because of the nature of the offence the procedure should have been carried out immediately, not after seven months had passed, and only by an expert child psychologist or child psychiatrist; -the examination of the child by the child psychiatrist at the material time was done by means of play, as was done in this type of cases, with the help of anatomical dolls. It was through this process that the psychiatrist concluded that the offence in question was committed by the father. The specialist, after seven months, had helped the child to forget and also to accept the absence of her father in her life. The child no longer reacted negatively and had stopped referring to her father. Reverting to the subject at this stage would traumatise her and lead to regression and was thus not recommended by experts; -the investigation authorities had had the opportunity to take a statement from the suspect from the very beginning but had unjustifiably omitted to do so. This gave rise to reasonable suspicion that a deliberate effort had been made to cover up the whole matter; -the report of the child psychiatrist had been communicated to the office of the Attorney-General, the Welfare Office and Police Headquarters. As mentioned by the child psychiatrist, her meetings with the child at the material time, had been carried out in the presence of a witness, a practice followed in such cases by reason of their nature and the very young age of the victims. This fact was mentioned in the child psychiatrist’s statement to the police; - the police authorities had not yet taken a statement from the clinical psychologist M.K. nor had they sought a restraining order against the father pursuant to the relevant domestic law; - the second applicant had agreed to take the child to be examined by a doctor following the authorities’ suggestion. However, following the unjustified delay on the part of the authorities to fix an appointment for the examination, the second applicant appointed a private specialist after having obtained the father’s consent. The father had not, at that point in time, made any attempt to have the child examined by a private or government doctor. 31. At the end of the letter the applicants’ lawyers requested a meeting with the Attorney-General as soon as possible. 32. By a letter dated 27 October 2008, the Attorney-General informed the applicants’ lawyers that he considered that a meeting would serve no purpose. He also agreed that there had possibly been remissness on the part of the investigating authorities in the investigation of the case and that a note of criticism had been sent to them. If the case, however, was to be taken to court it was necessary to obtain the required evidence by a video recorded statement of the child with the mother’s consent, to have the child examined by a specialist doctor and that the further actions the police asked of them should be taken. 33. In their reply dated 31 October 2008, the applicants’ lawyers disagreed with the Attorney-General and stressed that the case should have been taken to the domestic courts at least seven months earlier. The authorities should have taken a video recorded statement from the child at the time as well as a statement from the suspect in respect of the offences. The lawyers repeated the position taken in their previous letter and noted that the well-being and the interest of the first applicant were incompatible with the requests now made by the authorities. In their view the taking of a video recorded statement was not a prerequisite for the criminal prosecution of the suspect. There was ample evidence before the Attorney-General and any more delay in the prosecution of Y.Y. was against both the interests of the child and the interests of justice. They asked once more for a meeting in the presence of E.D., as she was the only specialist who had examined the first applicant, since neither the investigating authorities nor the suspect sought to have the minor examined by a third person. 34. By a letter dated 27 November 2008, the applicants’ lawyers submitted a detailed complaint to the Commissioner for Children’s Rights (“the Commissioner”) of a violation of the applicants’ rights as a result of the undue delay and the negligence on the part of the authorities to carry out a proper investigation of the case in breach of relevant domestic laws. They requested the Commissioner to take the necessary measures for the protection of the first applicant’s rights. 35. By a letter dated 18 March 2009, the Commissioner replied that she had requested the Minister of Labour and Social Insurance to inform her of the actions taken by the Welfare Office following the complaint made about the sexual molestation of the child, with specific questions concerning the investigation of the complaint, the cooperation/coordination with other services involved, the taking of a statement by the police, the direct referral of the child for an evaluation and for psychotherapeutic help to the Department of Child and Adolescent Medicine. She had also requested the views of the Social Welfare Services concerning the Attorney-General’s request for a video recorded statement from the first applicant in relation to the sexual molestation after nine months had elapsed and a briefing of how the Welfare Services were intending to proceed. 36. The Commissioner informed the applicants’ lawyers that upon receiving the replies from the relevant authorities she would examine the case and decide whether the appropriate measures had been taken in the case in order to secure the child’s rights and whether the procedures and practices followed in this kind of case complied with the provisions of the United Nations’ Convention on the Rights of the Child. In the event she discerned any violations, she would proceed to make the necessary recommendations with the aim of ending the violations and to ensuring that practices were adopted that fully secured the child’s rights. 37. By a letter dated 13 May 2009, the applicants’ lawyers re-contacted the Attorney-General, because they had not received a reply concerning their request for a meeting in the presence of E.D. (see paragraph 33 above). 38. By a letter dated 15 May 2009, the Commissioner informed the applicants’ lawyers that she had received a reply from the Minister of Labour and Social Insurance and had written to the Chief of Police with a number of questions relating to the handling of the case. 39. On 19 June 2009 the Limassol Family Court issued an interim order granting custody of the first applicant to the second applicant pending the proceedings. The order was to be reviewed on 30 June 2009. 40. By a letter dated 28 August 2009 the office of the Attorney-General informed the applicants’ lawyers that following an examination of the case, there was no adequate evidence in the case-file to substantiate their claims before a court. 41. By a letter dated 8 December 2009 the Commissioner informed the applicants’ lawyers that the Chief of Police had informed her that a video recorded statement had not been taken due to the second applicant’s negative stance and that the Attorney-General had given instructions not to institute criminal proceedings because of lack of evidence. She had written in reply to the Chief of Police noting the State’s obligations to secure the child’s rights and that in this case the competent authorities had not done so. She had requested specific information about the procedures and practices in the present case as well as in other similar cases. This included questions concerning the decision of the Attorney-General. 42. In the meantime the applicants appointed new lawyers to represent them before the domestic authorities. 43. By a letter dated 11 December 2009, the applicants’ new lawyers, referring to the decision not to prosecute Y.Y. due to insufficient evidence, sent to the Attorney-General a written affirmation by M. K. (see paragraph 13 above) that she had attended as a witness the examination of the first applicant by E.D. and the Commissioner’s letter of 8 December 2009. In the letter, they also emphasised that, according to the case-law, children against whom this kind of offences were committed, did not constitute “exhibits” to be given for examination or inspection by the defence. This was particularly so when the examination or the taking of a video recorded statement had not been promptly made but, as in the present case, was sought to be taken nine months later; a delay that would cause the child a new traumatic experience without, however, any significant result. They stated that they were certain that criminal proceedings against Y.Y. could be instituted on the basis of the evidence of E.D, the corroborative evidence of M.K and that of the second applicant as well as other circumstantial evidence. 44. It appears that another letter was sent by the Commissioner to the Chief of Police on 8 March 2010. 45. By a letter dated 26 May 2010 the applicants’ lawyers wrote to the Commissioner noting that they had not received any news as to whether the Chief of Police had replied to her above-mentioned letter (see paragraph 44 above). They observed that the State had failed to protect the rights of children although it had committed itself to doing so through the office of Commissioner. They reminded the Commissioner of the fact that the police officers who were responsible for investigating the complaint had not carried out their duties properly and that their mistakes and omissions had determined the course and fate of the case. The Attorney-General had refused to prosecute the suspect because of “insufficient evidence” in the file of the case. The insufficiency of the evidence was due to the wrong way the police force had dealt with the case. The lawyers reminded the Commissioner that the file of the case had been sent to the police authorities seven months later, with instructions to take statements from certain persons including Y.Y. At about the same time the Office of the Attorney-General had asked for the second applicant’s consent for the taking of a video recorded statement from the three year old child. After consulting E.D., the second applicant had not consented to the above giving a number of reasons, including the damaging effect a statement would have on the first applicant’s psychological state. The last letter sent by the lawyers to the Attorney-General containing their request for re-examination of the case had remained unanswered. Unfortunately the Attorney-General’s decision not to prosecute Y.Y., had been interpreted by the welfare officers as meaning that the complaint was unfounded. As a result, in the proceedings before the Family Court of Limassol, they had sought to restore the communication of the minor with the father despite the scientific findings of E.D. to the contrary. They pointed out in this respect that the Family Court had instructed the Welfare Office to appoint, with the consent of both parents, a child psychiatrist. The Director of the Child Psychiatric Unit of the General Hospital of Limassol was appointed. For this purpose, he was then called by the Welfare Office to help the court by evaluating the current state of the minor without examining the child in relation to the alleged sexual molesting because of the long time that had passed. It was agreed in court that she should only examine the present psychological state of the first applicant, her development, including her emotional development, in general, bearing in mind her age. The Welfare Office, however, in a letter addressed to the above child psychiatrist had told her to examine the current state of the minor with the purpose of reinstating communication with the father and suggested that she ignore, in making her assessment, the allegations of sexual molestation as no criminal proceedings had been instituted against the father. They ended the letter by again requesting the Commissioner to intervene and to investigate the matter through the police, the Attorney-General’s office and the Welfare Office before more damage was done. 46. The Commissioner replied to the above letter on 3 August 2010. In this she set out the steps she had taken in the case and the information that had come to her through correspondence with the authorities such as the Minister of Labour and Social Insurance and the Chief of Police. She concluded with the following: (a) The Welfare Office had immediately taken all necessary steps for investigating the case and had continuously co-operated with all the other authorities involved. (b) The procedures followed by the authorities had as a criterion the child’s interests; in the present case it appeared that the young age of the child and the refusal of the second expert M. K. to give a statement to the police or submit a report had played a decisive role in the case. M.K. had informed the police authorities that she was unable to give an opinion and requested not to be contacted again about this issue. The absence of corroborative evidence from her resulted in the lack of adequate and reliable evidence which led to the non-prosecution of the father. The young age of the child, both at the initial and subsequent stages of the investigation, did not allow for the taking of a video recorded statement. International bibliography indicated that information taken during interviews from children aged between two and five years is confusing and thus it is difficult for experts to reach safe conclusions. Even though it was not possible to determine with certainty whether the child had been sexually molested by her father, so that the case did not lead to criminal proceedings, the Commissioner considered that priority must be given to the protection of the child through cooperation between the child and the other members of her family with the appropriate services. The Commissioner pointed out that the psychosocial and emotional development of children in respect of whom there was an allegation that they had been subjected to sexual and/or psychological abuse by one of their parents, was usually negatively affected. For this reason, it was necessary to give priority to proper professional intervention with the appropriate psychotherapeutic methods which would help the child to become emotionally and psychologically stronger and to enhance its self-image. Moreover, priority must be given to the restoration and strengthening of the relations of the child with both parents. In conclusion the Commissioner expressed the wish that the difficulties of the child would be overcome soon so that balance in the family would be restored. 47. By a letter dated 10 November 2011, the applicants’ representative informed the Court that the second applicant had filed an application before the Family Court for a final restraining order against Y.Y. in order to prevent him from exercising his contact and other rights with the child. He also informed the Court that at the same time she was granted an interim order and that on 31 October 2011 the Family Court of Limassol dismissed Y.Y.’s application for supervised contact rights with the first applicant pending the final adjudication of the second applicant’s application which was fixed for hearing for 16 December 2011. 48. No more information has been given by the applicants concerning the proceedings before the Family Court. 49. Under the Constitution the Attorney-General is an independent officer of the Republic (Article 112). Article 113(2) of the Constitution provides that: “The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.” 50. The Commissioner for Children’s Rights is an independent institution which deals exclusively with the rights of the child. The Commissioner is appointed by the Council of Ministers pursuant to the Commissioner for the Protection of Children’s Rights Law, (Law 74(I)/2007) which came into force on 22 June 2007. Under section 3 of Law 74(I)/2007 the role of the Commissioner is to protect and promote the rights of the child. The Commissioner publishes, inter alia, annual reports as well reports on individual complaints and policy position papers. 51. In her annual report for 2009 the Commissioner, referring to complaints made to her in that year, included the present case and observed that the manner in which the case had been handled by the police authorities had not completely secured the child’s interests, as the child, during the whole period when the case was under investigation, had been left exposed and unprotected. As a result there had been a strong risk of secondary victimisation. She noted that she had intervened and had contacted the Chief of Police, underlining the State’s obligations concerning the protection of the child victim. She had also requested details of the procedures and practices used in the case by the police during the investigation, concerning particularly the referral of the child for a medical examination, the co-operation with other competent services, the taking of a statement from the child and, mainly, the reasons for which a video recorded statement was not taken promptly. In so far as the decision not to prosecute the father was concerned, she had asked the police authorities to inform her whether they intended to take any further action for restoring the child’s rights. She had not received a reply by the end of 2009.