issued by the Registrar of the Court

ECHR 085 (2024)

09.04.2024

Inadequate investigation into allegation of sexual abuse in children’s home

In today’s Chamber judgment¹in the case of E.L. v. Lithuania (application no. 12471/20) the

European Court of Human Rights held, unanimously, that there had been:

a violation of Article 3 (prohibition of inhuman or degrading treatment/investigation) of the

European Convention on Human Rights.

The case concerned the applicant’s allegation that he had been sexually abused by three older boys

when placed in a children’s home between 2008 and 2013.

The Court found in particular that both the prosecuting authorities and the courts had been

reluctant to order or to explicitly address the need for a comprehensive psychiatric and

psychological examination in connection with the alleged abuse, despite the applicant’s requests.

The authorities had therefore failed in their Convention duty to effectively investigate the

applicant’s allegation of ill-treatment.

Principal facts

The applicant, Mr E.L., is a Lithuanian national who was born in 2006 and lives in the village of Šatijai,

in the Kaunas Region (Lithuania).

The applicant was appointed a guardian in 2013 as the courts had restricted the parental rights of his

biological parents. In 2018 his guardian reported to the childcare authorities that the applicant had

told her that he had been sexually abused by three older boys when placed in a children’s home

between 2008 and 2013.

The childcare authorities complained to the police who, in November 2018, opened a pre-trial

investigation into the offence of sexual assault against a young child. The prosecuting authorities

identified and questioned as witnesses the possible perpetrators, as well as the director of the

children’s home. They all denied that any sexual abuse had taken place. The authorities also

requested the courts to authorise the tapping of these four individuals’ telephones. Authorisation of

that tapping was extended when the prosecutor noted that they had started communicating more

often and by coded messages.

The applicant was subsequently interviewed by the pre-trial investigation judge. He testified that he

had been anally raped by an older boy at the children’s home and that two other boys had watched

and one of them had laughed. He stated that when he had told the director of the children’s home

what had happened, she had told him “that is enough” and bought him a “big red toy car”.

In addition, he underwent a medical examination, which reported no injuries on his body that could

indicate that sexual violence had occurred. He was also examined by a psychologist from a centre

specialising in assisting children who are victims of sexual violence (the Children’s Assistance

Centre). The psychologist concluded that the applicant had possibly experienced sexual abuse.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Ultimately the pre-trial investigation was, however, discontinued on the grounds that no information

had been obtained from the alleged suspects or the director of the children’s home to prove that a

crime had been committed.

The applicant and his guardian unsuccessfully appealed to the courts, which essentially agreed with

the prosecuting authorities that there was no evidence to contradict the testimonies of the suspects

or the director of the children’s home.

Throughout the proceedings the applicant made repeated requests that the prosecutor and courts

order a comprehensive forensic psychiatric and psychological expert examination (teismo

psichiatrijos – teismo psichologijos ekspertizė). In their refusals, both the higher prosecutor and

courts relied on a legal provision which provided that it was the prosecutor’s prerogative to decide

which investigative measures to take.

Complaints, procedure and composition of the Court

Relying on Article 3 (prohibition of inhuman or degrading treatment/investigation), the applicant

alleged that the authorities had failed to effectively investigate his allegations of abuse.

The application was lodged with the European Court of Human Rights on 19 February 2020.

Judgment was given by a Chamber of seven judges, composed as follows:

Arnfinn Bårdsen (Norway), President,

Jovan Ilievski (North Macedonia),

Egidijus Kūris (Lithuania),

Pauliine Koskelo (Finland),

Frédéric Krenc (Belgium),

Diana Sârcu (the Republic of Moldova),

Davor Derenčinović (Croatia),

and also Hasan Bakırcı, Section Registrar.

Decision of the Court

The Court agreed with the Government that a number of relevant and timely measures had been

taken to investigate the applicant’s case. Nevertheless, it considered that there had been

shortcomings in the proceedings.

Firstly, the prosecutors had on several occasions limited the scope of their enquiries to hearing only

the alleged perpetrators’ version of events. As argued by the applicant during the proceedings,

criminal investigations would never produce results if they were always discontinued when the

suspect had not confessed.

The Court was also attentive to the applicant’s argument that the Lithuanian Supreme Court had

previously emphasised that the absence of witnesses in cases of sexual abuse against minors could

not be a reason for failing to investigate and to send such cases for trial. Psychiatric and

psychological forensic conclusions were therefore all the more important evidence in such cases.

Above all, neither the higher prosecutor nor the courts had made the effort to explain why a forensic

psychiatric and psychological examination had not been necessary. Indeed, they had persistently

hidden behind the legal provision providing that it had been the prosecutor’s decision to take. The

authorities had taken that approach, despite a psychologist’s conclusion that sexual violence could

have taken place (in the report by the Children’s Assistance Centre) and the prosecutor’s own

admission that the telephone tapping had revealed that the four individuals designated as witnesses

had begun meeting more often, possibly in order to coordinate their versions of events.

The Court therefore found that in this particular case the State had failed in its duty to effectively

investigate the applicant’s allegation of ill-treatment. There had accordingly been a violation of

Article 3 of the Convention.

Just satisfaction (Article 41)

The Court held that Lithuania was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary

damage.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.