CASE OF A, B AND C v. LATVIA
Preliminary objection joined to merits and dismissed (Article 34 - Victim);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
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. 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. 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. 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. 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 abovementioned 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.