B.c. v. SLOVAKIA
Inadmissible
Nicolas Bratza
The applicant, Mrs B.Č., is a Slovakian national who was born in 1960 and lives in Košice. She is represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice. In March 1999 the applicant petitioned for divorce from her husband as their relations had disintegrated. At that time, their son, born in 1992, lived together with the applicant’s husband in one room. The applicant with her daughter born from her previous marriage lived in a different room of the same flat. All family members commonly used the living room and the kitchen. In the evening of 7 July 1999 the applicant and her daughter found her husband and the boy naked in the living room. They noticed that the penis of the boy’s father was erect. In fear that her husband had abused the boy, the applicant let him spend the night in her room and they slept at their neighbour’s place on the following night. On 9 July 1999 the child was examined by a psychologist who concluded that he had suffered a psychological trauma. According to the report, the child had made a picture resembling an erect penis when asked to draw his family. The applicant and her children started living at a different place. On 3 September 1999 the applicant filed a criminal complaint alleging that her husband had sexually abused the boy. The applicant submitted, in particular, that she had found both her husband and her son lying naked in their living room on 7 July 1999, and that her husband’s penis had been erect. On 7 October 1999 the District Court in Košice II placed the boy provisionally in the applicant’s custody. It further prohibited the father from meeting the child. On 23 December 1999 the District Office of Investigation of the Police Corps in Košice II, with reference to the child’s statement, dismissed the complaint holding that nothing indicated that an offence had been committed. The police had before them, among other documents, an opinion submitted by an expert on 19 October 1999. In it reference was made to the boy’s statement that his father had moved his penis as if playing a guitar while being naked when the boy had come to sleep in the father’s room. The child further stated that the father had wanted him to watch him, but had neither touched the boy nor had he wanted the boy to touch him. In his opinion of 19 October 1999, the expert characterised the father’s behaviour as sexually abusive. The expert later admitted that such conclusion could be drawn under the hypothetical assumption that the father’s behaviour had been erotically motivated. Otherwise that behaviour was to be qualified as socially inappropriate. The applicant filed a complaint against the above decision on 13 January 2000. She pointed out, in particular, that in his statement before an expert her son had affirmed that her husband had manipulated his sexual organ in the presence of the child. Her son displayed the syndromes of an abused child despite the fact that she and the child had moved to a different place. She also referred to the conclusion of a psychologist who had examined the child, at her request, on 9 July 1999. According to the psychologist, the child had suffered a serious psychological trauma. On 26 January 2000 the Košice II District Prosecutor quashed the investigator’s decision. In the course of the subsequent criminal proceedings the public prosecutor indicted the child’s father for the offence of sexual abuse pursuant to Article 242 (1) and (2) of the Criminal Code. According to the indictment, the accused, on 7 July 1999, had been lying naked in the living room with an erect penis and had masturbated, while his son had been lying undressed close to him. They had been found in that position by the applicant. Throughout the investigation the father denied the accusation. He explained that he and the child had watched TV before going to sleep in the evening in issue. They had undressed as it had been very hot that day. On 25 August 2000 the Košice II District Court discontinued the proceedings as no offence had been committed. It referred to documents included in the file, such as statements of the applicant, her son and daughter as well as of the accused. It also had regard to four expert opinions and the information submitted by an administrative authority. The court concluded that the action described in the indictment could not be qualified as sexual abuse under Article 242(1) and (2) of the Criminal Code. Finally, the decision stated that in criminal proceedings a court can assess only acts which are described in the indictment. On 15 November 2000 a court decreed the divorce of the applicant and her husband. On 30 November 2000 the Regional Court in Košice quashed the District Court’s decision of 25 August 2000. The Regional Court noted that two expert opinions supported the public prosecutor’s view that the applicant’s son had been sexually abused. However, the file also comprised a third expert opinion, submitted in the context of proceedings concerning parental rights and obligations. In it the expert, who had examined both the parents and the child, had reached a different conclusion. With a view to having the relevant facts established, the Regional Court instructed the prosecuting authorities to ask the Slovak Chamber of Psychologists to identify a suitable expert. It held that both parents should be examined by an expert, and that the applicant should be asked to explain why she had filed her criminal complaint nearly two months after the incident had occurred. The case was returned to the public prosecutor who re-transmitted it to the police investigator. On 9 August 2001 the District Office of Investigation in Košice II discontinued the criminal proceedings against the child’s father as the action imputed to him did not constitute an offence. The police investigator heard the two parents, the boy and the applicant’s daughter and several witnesses. According to the boy’s statements, he had often been obliged to sleep together with the father when the latter had returned home intoxicated. On one occasion, he had been obliged to sleep naked with the father as they had not found his pyjamas. His father had always locked the door. The boy stated that he had disliked sleeping with his father as the latter had been intoxicated and naked. The applicant’s daughter stated that, in the evening of 7 July 1999, she had seen that her step-father had risen from the sofa with his penis erect and had run to his room at the moment when her brother had switched on the light in the living room. She affirmed that her step-father had in the past stayed with her brother locked in the bathroom and in his room. In addition to the expert opinions mentioned above, the investigator had also regard to the opinion of a sexologist stating that the accused was heterosexually oriented and that he displayed no signs of sexual deviation. As there were discrepancies in the various expert opinions, the investigator requested, in accordance with the Regional Court’s instruction, the Research Institute of Child Psychology and Patopsychology in Bratislava to submit an opinion on the relevant issues. The experts of the institute submitted their opinion of 23 pages on 30 April 2001. The experts of the institute examined the boy, his father, the applicant and her daughter and assessed in detail the trustworthiness of their statements. They then commented on the four opinions earlier submitted by different experts. In their conclusion, the experts of the institute held that the father’s behaviour had not threatened the boy’s mental development. They considered trustworthy the boy’s statement according to which the father had neither beaten him nor had he touched his body or asked the boy to touch his genitals. As regards the alleged abuse of the child, the only reliable information represented the boy’s statement according to which his father had moved his penis as if playing a guitar. It was impossible to establish when, in what context and how often such behaviour had occurred. In the experts’ view, it was however improbable that the child had observed his father masturbating. The experts further considered disputable the quality of two expert opinions submitted earlier. As to the signs of neurosis which the boy had displayed in the past, the experts of the institute held that they did not prove that the child had been sexually abused. On the basis of the above materials the police investigator concluded, in a decision of 9 August 2001, that there was no indication that the accused had behaved in a manner which could be qualified as sexual abuse under Article 242(1) and (2) of the Criminal Code. On 27 August 2001 the applicant filed a complaint. She argued that the investigator’s decision did not correspond with the evidence taken in the criminal proceedings. On 14 September 2001 the District Prosecutor’s Office in Košice II dismissed the applicant’s complaint against the investigator’s decision on the ground that the applicant was not entitled to file it. In a separate letter of the same date the public prosecutor informed the applicant, with reference to the opinion of the experts from the research institute, that he shared the view of the police investigator according to which her former husband had not sexually abused the boy. Article 242 of the Criminal Code governs the offence of sexual abuse. Pursuant to paragraph 1, a person who has sexual intercourse with a person younger that 15 years or who sexually abuses such a person in a different manner is to be punished with a prison term between 1 and 8 years. Under paragraph 2, the prison term shall be between 2 and 10 years where a perpetrator commits the offence set out in paragraph 1 in respect of a person placed under his or her authority and in abuse of the victim’s dependence. In practice, forms of sexual abuse other than sexual intercourse within the meaning of Article 242(1) comprise satisfying one’s sexual drive by touching the body of the abused person, kissing or touching genitals provided that such actions are intensive.