Постановление ЕСПЧ от 07.02.2023

<Дело Б. (B) против России> (жалоба № 36328/20) [англ.]

<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of B v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Pere Pastor Vilanova, President,

Yonko Grozev,

María Elósegui ,

Darian Pavli,

Peeter Roosma,

Ioannis Ktistakis,

Andreas Zünd , judges,

and Milan Blaško , Section Registrar,

Having deliberated in private on 17 January 2023,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the alleged secondary victimisation of the applicant, a child victim of sexual abuse, in criminal proceedings.

PROCEDURE

2. The case originated in an application (no. 36328/20) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by a Russian national, Ms B («the applicant»), on 13 August 2020. The Vice-President of the Section decided not to have the applicant's name disclosed (Rule 47 § 4 of the Rules of Court).

3. The applicant was initially represented by Ms V. Kogan, director of the NGO Astreya based in Moscow, and subsequently by Ms A. Zakharova, a lawyer with the NGO Astreya, and Ms O.A. Gnezdilova, a lawyer authorised to practise in the Voronezh region, Russia, and residing in Germany. The applicant was also represented throughout the proceedings by Mr E. Wesselink, Chair of the NGO Stichting Justice Initiative based in Utrecht. The Russian Government («the Government») were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by Mr M. Vinogradov, his successor in that office.

4. On 18 February 2021 the Government were given notice of the complaints concerning the applicant's alleged secondary victimisation in criminal proceedings concerning her sexual abuse. On 12 October 2021 the Government submitted their observations on the admissibility and merits of the application. The applicant's observations were received on 31 December 2021.

5. On 16 March 2022 the Committee of Ministers of the Council of Europe, in the context of a procedure launched under Article 8 of the Statute of the Council of Europe, adopted Resolution CM/Res(2022)2, by which the Russian Federation ceased to be a member of the Council of Europe as from 16 March 2022.

6. On 22 March 2022 the Court, sitting in plenary session in accordance with Rule 20 § 1, adopted the «Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights». It stated that the Russian Federation would cease to be a High Contracting Party to the Convention on 16 September 2022.

7. On 5 September 2022 the Plenary Court took formal notice of the fact that the office of judge with respect of the Russian Federation would cease to exist after 16 September 2022. This, as a consequence, entailed that there was no longer a valid list of ad hoc judges who would be eligible to take part in the consideration of cases where the Russian Federation was the respondent State.

8. Following a prior notification to that effect, to which the respondent Government failed to react, the President of the Section appointed one of the sitting judges of the Court to act as ad hoc judge, applying by analogy Rule 29 § 2 of the Rules of Court.

THE FACTS

9. The applicant was born in 2007 and lives in Kazan.

10. In June 2018 the applicant's mother died and in August 2018, at her father's request, the applicant was placed in an orphanage. From October 2018 the applicant lived with the family of Ms F.Kh. who was appointed her guardian. The applicant was subsequently placed with the family of Ms S.Ye. who was appointed her new guardian on 21 June 2021.

11. On 10 February 2019, at the request of her guardian, the applicant was interviewed by psychologists (Ms S.Ye. and Ms A.Yu.) from the Centre of Assistance to Children without Parental Care (a State budget-funded institution providing assistance to children without parental care and their non-parent carers, «the CA»). The applicant told the psychologists that she had been sexually abused by several male individuals.

12. On 16 February 2019, on the application of her guardian, criminal proceedings were initiated under Article 132 § 4 (b) of the Criminal Code (actions of a sexual nature against a person aged under 14), in which A.M. became a suspect in respect of facts that had occurred in 2017. On 17 February, 15 July and 19 September 2019, proceedings brought against E.T., R.T. and Ye.Ch., respectively, in respect of facts that had occurred at different times in 2014-15, were separated into independent sets of criminal proceedings.

I. Investigation proceedings

13. Between February 2019 and September 2020, five different investigators (four male and one female) from the Investigative Committee Unit of the Republic of Tatarstan for the Privolzhskiy district of Kazan carried out investigative actions with the applicant's participation, in the presence of her guardian, the psychologists from the CA (who were also educators), and from April 2019, a lawyer, as specified in the attached table.

A. Interviews

14. The applicant's first interview by an investigator on 16 February 2019, during which she gave an account of all of the episodes of her sexual abuse by four individuals (in some more detail than during her initial interview by the psychologists), was videotaped. The recording was lost on the same day owing to «technical malfunctions». The applicant subsequently had to repeat the story of her abuse by four individuals three more times in each of the three other sets of criminal proceedings (on 17 February, and 4 and 20 September 2019) and to participate in further interviews which were focused on her alleged abuse by one of the perpetrators in the relevant case. She was interviewed twelve times overall (three times in each case) by different investigators (three male and one female). All of the interviews were carried out in ordinary offices of the investigating unit.

15. On 18 February 2019 the investigator L.G. (in the case of A.M.) questioned the psychologists from the CA, who considered the applicant's statements during her interview on 10 February 2019 to be credible. On 7 April 2019 the video-recording of that interview was examined by the investigator, who ordered its forensic linguistic examination (report of 7 May 2019) and forensic psychological examination (report of 17 June 2019 which indicated that during the interview the applicant was in a state of medium-level mental distress).

B. Verification of statements

16. The on-site verification of the applicant's statements, that is to say the applicant's oral reconstruction of the events at the places of her alleged abuse, took place in two flats on 19 February 2019 (cases against A.M. and E.T.). E.T.'s brother was present in one of the flats, because (according to the Government) he was an owner of the flat. Subsequently, after voicing her disagreement to returning to one of the flats for the verification of her statements in the case against another perpetrator (R.T.), the applicant was allowed to reconstruct the events with the help of photographs.

C. Identification parades

17. On 16 and 18 February 2019 two identification parades (for the identification of E.T. and A.M., respectively) took place on the investigating unit's premises, equipped with a one-way mirror so that the applicant would see the individuals presented for identification including the alleged perpetrators in person, while not being seen by them. During one such parade, apparently because of the investigator's mistake, A.M. walked into the room where the applicant was, frightening her. The other two suspects were identified by photographs in September 2019.

D. Confrontations

18. Confrontations were conducted on 8 April 2019 with A.M. (assisted by one lawyer), and on 26 April 2019 with E.T. As well as giving detailed accounts of her sexual abuse in the presence of the alleged perpetrators, the applicant had to answer questions. The alleged perpetrators denied committing the acts alleged by the applicant and she had to state whether she insisted on her statements, which she did. During the confrontation with A.M., a break (for fourteen minutes) was announced at the request of the applicant's guardian and the psychologists, after the applicant's face had flushed red and she had started crying. After recounting the story of her sexual abuse during the second confrontation, the applicant and the psychologist asked for a break which lasted ten minutes. Having answered numerous questions which were asked by two (male) lawyers assisting E.T., the applicant had the same reaction (flushing red and bursting into tears), which prompted a request for another break by her guardian and the psychologist, who then requested halting the confrontation because the applicant was exhausted and not feeling well.

E. Procedural decisions

19. According to the Government, an application in which the applicant's guardian asked for supervision over the investigation in the criminal proceedings concerning the applicant's sexual abuse was received by the Prosecutor General's Office on 13 March 2019 and answered favourably by the Privolzhskiy district prosecutor's office of Kazan on 22 March 2019. The legality of the investigative actions carried out with the applicant's participation was examined by a supervising prosecutor who found no violations.

20. On 13 June 2019 the applicant's lawyer requested an investigator to absolve the applicant from taking part in investigative actions because of their destructive impact on her psychological and physical health. He explained that during the previous investigative actions the applicant had experienced emotional shock because of her reliving the crimes against her sexual integrity and her direct contact with the alleged perpetrators. On the same day, the investigator L.G. granted the request (in the case against A.M.), referring to an investigator's general authority under Article 38 of the Code of Criminal Procedure to determine the course of an investigation and take decisions on the investigative activities to be carried out.

21. On 12 July 2019 an acting head of the investigating unit granted the applicant's lawyer's request not to inform the applicant about the completion of some additional investigative actions in the case against E.T. to avoid a negative impact on her psychological health.

22. On 4 September 2019 the investigator L.Kh. allowed an objection by the applicant's guardian to any photography or video-recording of investigative actions which included the applicant's participation (case against R.T.). According to the applicant, her guardian objected because she had not been informed of the loss of the video-recording of the first interview, or about the aim of video-recordings being to avoid repeated interviews.

23. On 10 September 2019 the guardian successfully objected to a confrontation between the applicant and R.T., considering it unacceptable and dangerous for the applicant's psychological health. On 4 October 2019 the investigator rejected R.T.'s request for a confrontation on the grounds that it might traumatise the applicant, complicate her rehabilitation and worsen her condition (referring to Article 38 of the Code of Criminal Procedure, see paragraph 20 above).

24. The applicant's request to join the four sets of criminal proceedings into one, in order to reduce the number of investigative actions requiring her participation, was rejected because the proceedings concerned separate crimes.

25. The investigators considered that the investigative activities carried out in one case were relevant as evidence in another case. On that basis, some documents were made part of more than one case file, in particular:

• On 10 April 2019 the investigator D.S. added a forensic expert's report of 17 January 2020 (see paragraph 36 below) from the case against E.T. to the case against Ye.Ch.;
• On 15 July 2019 the investigator O.K. reported adding documents from the case against A.M. to the case against R.T. (records of the applicant's interview on 16 February 2019, the identification parades on 16 and 18 February 2019, the confrontations on 8 and 26 April 2019, documents concerning the examinations of the applicant by psychologists, and forensic experts' reports of 19 February and 17 June 2019).

II. Trial proceedings

26. On 13 August 2019 the case against A.M. was transferred to the Privolzhskiy District Court of Kazan for trial.

27. During the trial in a closed hearing, following the examination of forensic experts' reports of 26 March and 25 June 2019, the applicant's lawyer requested that a report of 17 January 2020 also be examined (see paragraphs 35 and 36 below). His request was supported by the prosecutor, and objected to by the accused and his lawyer on the grounds that the report had been ordered in another criminal case. On 12 March 2020 the court, composed of presiding judge Mr G., rejected the request on the grounds that the report had been ordered in the case against another accused and could not therefore be admitted as evidence in the case against A.M. The judge also rejected the public prosecutor's request (supported by the applicant's guardian and her lawyer) that the applicant's statements given at the preliminary investigation be read out in view of her condition. The court cited the lack of any evidence that the applicant could not participate in the hearing.

28. At the hearing on 20 May 2020, the prosecutor submitted the results of the applicant's examination by psychologists on 12 May 2020 (see paragraph 39 below) and reiterated the request for her statements to be read out, arguing that the applicant's examination at the trial might lead to her traumatisation. The court added the psychologists' report to the case file and dismissed the request, citing the lack of medical evidence and opinions by those with the status of experts and specialists certifying that the applicant could not participate in the hearing because of psychological issues. The court stated that it considered it necessary to examine the applicant taking into account «the material examined at the hearing».

29. On 10 June 2020 the applicant was subjected to detailed examination by the prosecutor, the defendant's lawyer and the presiding judge about her sexual abuse by A.M., in the absence of the accused and in the presence of her guardian, her lawyer, an educator and a psychologist. At the psychologist's suggestion, she answered two questions in writing. There was a ten-minute break. The records of the applicant's statements at the preliminary investigation were read out in her presence (at the request of the defendant's lawyer in view of alleged inconsistencies with her testimony at the trial) and her examination continued, including after a request made by the psychologist, supported by the applicant's guardian, for an adjournment or a break because the applicant was being further traumatised. The judge postponed the hearing when the examination reached the limit of two hours.

30. The applicant was summoned for continued examination by the court on 18 June, 30 June and 10 July 2020. Questions put in writing by the accused were overruled by the court as repeated or irrelevant.

31. On 7 July 2020 the head of the CA and the applicant's lawyer lodged an application with the Chairman of the Supreme Court of the Republic of Tatarstan, in which they questioned the appropriateness of the applicant's examination in court, relying on Article 3 of the Convention and the Court's case-law. They noted that six investigators had been involved in the investigation, and each of them had more than once interviewed the applicant about the same events despite objections from her guardian and psychologists. The Centre had asked the authorities to carry out the investigation under enhanced control to protect the applicant's rights (in particular, in letters of 15 February 2019 to the head of the investigating unit and the Privolzhskiy district prosecutor). After her repeated interviews and confrontations, from 12 to 19 July 2019 the applicant had undergone inpatient treatment for asthenic-neurotic syndrome, following which further medical treatment and a «protective regime» had been recommended. The application referred to other conclusions and recommendations made by psychologists (see paragraph 39 below). It was deplored that the applicant's reliving the traumatic events through her direct contact with the accused and his lawyer had caused her additional mental suffering.

32. On 16 July 2020 the Privolzhskiy District Court of Kazan convicted A.M. under Article 132 § 4 (b) of the Criminal Code and sentenced him to twelve years' imprisonment. On 22 September 2020 the Supreme Court of the Republic of Tatarstan upheld the judgment on appeal, with some amendments. On 25 February 2021 the Sixth Court of Cassation of General Jurisdiction dismissed a cassation appeal by A.M. and upheld the lower courts' judgments.

33. During the trials against the other three defendants, the applicant's statements given at the preliminary investigation were read out at her lawyer's request. On 13 December 2021 the Privolzhskiy District Court convicted E.T. and sentenced him to nine years' imprisonment. R.T.'s trial also ended with his conviction. Appeal proceedings in those cases and the trial against Ye.Ch. are pending.

III. Medical evidence

A. Forensic examinations

34. On 19 February 2019 the forensic medical examination of the applicant, ordered by an investigator, was carried out. The applicant was questioned by an expert and had to recount her sexual abuse by four individuals. It was found that she had no injuries and that her hymen was intact.

35. On several occasions the applicant underwent forensic psychological and psychiatric examinations by commissions of experts (from the Bekhterev psychiatric hospital of the Ministry of Health of the Republic of Tatarstan), ordered by investigators. The experts' report of 26 March 2019 (case against A.M.) found no mental disorder and stated that the applicant could participate in the proceedings. Reports of 25 June (case against A.M.) and 23 September 2019 (case against R.T.), while establishing no mental disorder, indicated that the applicant was in a state of mental and emotional distress because of changes in her life, the loss of her mother, and the investigative activities.

36. On 19 November 2019 the investigator I.G. ordered a repeated forensic examination (case against E.T.), considering that there was a certain inconsistency between the reports of 26 March and 25 June 2019 in respect of the applicant's credibility. Between 17 December 2019 and 17 January 2020, the applicant was examined by a commission of experts in psychiatry, psychology and sexology from the Serbskiy National Medical Research Centre of Psychiatry and Narcology of the Ministry of Health of the Russian Federation, who diagnosed her with a mental disorder in the form of prolonged depressive reaction, which had developed as a result of several psycho-traumatic factors, notably the unlawful acts committed against her by several individuals, her family situation (her mother's death, abandonment by her father and placement in the orphanage) and the current situation relating to the investigation and criminal proceedings. Her condition required medication and psychological treatment. Her further participation in the investigation and court proceedings was not recommended. I.G., a deputy head of the investigating unit, notified the applicant's guardian and lawyer of the experts' report on 13 February 2020 (at 12.12 p.m., after interviewing the applicant earlier on the same day in the cases of E.T. and R.T., see the attached table).

B. Other opinions by psychologists

37. According to the psychologist who interviewed the applicant on 10 February 2019 and was present during the investigative actions, it was necessary to avoid the applicant meeting the alleged perpetrators, in order to prevent her continued traumatisation which might complicate her rehabilitation and worsen her mental state (record of the psychologist's questioning by the investigator L.G. on 18 February 2019 in the case of A.M.). According to the psychologists assisting the applicant, during the interviews, the verification of statements at the places of her alleged abuse and the confrontations which followed, the applicant displayed reactions (signs of psychological trauma) typical of child victims of sexual abuse, reliving shame, emotional stress, nervous overstrain and fear. The psychologists certified her emotional breakdown during the confrontation with E.T. when she had burst into tears. She had had the same reaction during her confrontation with A.M. She had become very scared when she had seen A.M. entering the room during the identification parade and it had taken a long time for her to be calmed down by her guardian and the psychologists. In the room with a one-way mirror for identification she had become scared when she had seen E.T. and had been stressed that he would see her. She needed psychological rehabilitation and was in the state of high anxiety and severe emotional stress, and was exhausted emotionally and physically (records of questioning of the psychologists on 4 — 5 July 2019 by the investigator L.G. in the case of E.T., and on 27 September 2019 by the investigator L.Kh. in the case of Ye.Ch.).

38. On 13 June 2019 the applicant's examination by the psychologists from the CA at the request of the investigating unit revealed her emotional, mental and physical exhaustion and tendency for depression because of acute overstress. It was recommended that she avoid mentally traumatic situations and negative emotions.

39. At the request of her guardian, the applicant was examined by psychologists who concluded that she showed emotional distress and exhaustion with signs of moderate depression (12 May 2020, the CA, recommendation to avoid psychologically traumatic situations and emotional pressure); distress, exhaustion, chronic overstrain and a tendency for the development of suicidal behaviour (1 June 2020, Rostok Centre for Psychological Rehabilitation of Children, recommendation to avoid all stressful activities); abrupt deterioration of her emotional state, excessive asthenia, post-traumatic stress disorder (18 June 2020, Rostok Centre, further participation in court hearings was not recommended and all stressful activities were deemed unacceptable); medium level of suicide risk, moderate depression and heightened anxiety (3 July 2020, Rostok Centre, recommendation to avoid stressful situations).

40. According to a report of 24 December 2021 by a psychotherapist (who supervised the applicant from June 2021), the applicant was diagnosed with anxiety-depressive disorder as part of post-traumatic stress disorder which originated in the traumatic experience of her sexual abuse, her mother's death and her participation in the criminal proceedings. The report referred to statements of her guardian (herself a psychologist), present during the investigative activities, that the applicant's interviews by investigators of the opposite gender had increased her feeling of fear. The applicant had received psychological and medication therapy. In October 2021 her condition had deteriorated. Acute suicidal tendencies and self-harm were revealed. On 16 December 2021 she was placed under supervision by a psychiatrist at a psychiatric hospital. The applicant's traumatic experience, as a result of her sexual abuse and lengthy repeated investigative and procedural activities, had led to her taking an attitude of passive protest with a tendency for delinquent behaviour. It was necessary to continue treatment and supervision by a psychiatrist (psychotherapist) and clinical psychologist, possibly with medication therapy (depending on the applicant's age and condition). Rehabilitation, including individual psychotherapist's sessions at least twice a week, could last for three years or more.

RELEVANT LEGAL FRAMEWORK

I. Domestic law

41. Under the Code of Criminal Procedure of the Russian Federation (as amended by Federal Law no. 432-FZ of 28 December 2013), victims of crimes against their sexual integrity who are aged under 16 have a right to free legal aid (Article 45 § 2.1), the obligatory participation of a psychologist and the presence of a lawful representative at interviews, confrontations, identification parades and the on-site verification of statements; the obligatory video-recording of such investigative activities (unless there is an objection by victims or their lawful representatives) and the limitation of the duration of those activities to up to an hour uninterruptedly and two hours in total per day (for children aged between 7 and 14). They are not warned of any liability for the refusal to testify or for perjury, but it is explained that they have to tell the truth (Article 191). During trial, statements given by minor victims at the preliminary investigation are read out and the video-recordings of their interviews are reproduced in their absence and without their examination. Their further examination is possible if considered necessary by a court, on the basis of a reasoned decision (Article 281 § 6).

42. Under Article 125 of the Code of Criminal Procedure, the decisions and actions (or failure to act) of an investigator or head of an investigating authority, which are liable to infringe the constitutional rights and freedoms of the participants in criminal proceedings or to impede a citizen's access to justice, may be appealed against to a district court, which is empowered to check their lawfulness and grounds. Following examination of the complaint, the judge must either declare the decisions or actions (or failure to act) unlawful or unfounded and indicate the official's duty to rectify the breach committed, or dismiss the complaint.

II. International materials

43. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse that entered into force on 1 July 2010 («the Lanzarote Convention», ratified by Russia in 2013) provides in its Chapter VII concerning investigation, prosecution and procedural law as follows:

Article 30 — Principles

«1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child.»

2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate.

3. Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay.

4. Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.»

Article 31 — General measures of protection

«1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:»

a. informing them of their rights and the services at their disposal and, unless they do not wish to receive such information, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases;

...

c. enabling them, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered;

d. providing them with appropriate support services so that their rights and interests are duly presented and taken into account;

...

g. ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, unless the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact.

...

6. Each Party shall ensure that the information given to victims in conformity with the provisions of this article is provided in a manner adapted to their age and maturity and in a language that they can understand.»

Article 34 — Investigations

«1. Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. Such units or services shall have adequate financial resources.»

...»

Article 35 — Interviews with the child

«1. Each Party shall take the necessary legislative or other measures to ensure that:»

...

b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose;

c. interviews with the child are carried out by professionals trained for this purpose;

d. the same persons, if possible and where appropriate, conduct all interviews with the child;

e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings;

...

2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law.

...»

Article 36 — Criminal court proceedings

«1. Each Party shall take the necessary legislative or other measures, with due respect for the rules governing the autonomy of legal professions, to ensure that training on children's rights and sexual exploitation and sexual abuse of children is available for the benefit of all persons involved in the proceedings, in particular judges, prosecutors and lawyers.»

2. Each Party shall take the necessary legislative or other measures to ensure, according to the rules provided by its internal law, that:

...

b. the victim may be heard in the courtroom without being present, notably through the use of appropriate communication technologies.»

The Explanatory Report to the Lanzarote Convention provides further guidance.

44. The summary of other relevant international materials, notably the United Nations Convention on the Rights of the Child (ratified by Russia in 1990), the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence («the Istanbul Convention», not signed by Russia), the Recommendation Rec (2006) 8 of the Committee of Ministers of the Council of Europe to member States on assistance to crime victims adopted in 2006, and the Guidelines of the Committee of Ministers on child-friendly justice adopted in 2010, can be found in A and B v. Croatia (no. 7144/15, §§ 77 and 81 — 83, 20 June 2019).

THE LAW

I. Preliminary issues

II. Alleged violation of Article 3 of the Convention

46. The applicant complained that she had been subjected to secondary victimisation in the course of the investigation and trial in the criminal proceedings into her sexual abuse, in breach of Articles 3 and 13 of the Convention.

47. Having initially communicated the case under the above-mentioned Articles, as well as under Article 8 of the Convention of its own initiative, the Court, being the master of the characterisation to be given in law to the facts of the case, will examine this complaint under Article 3 of the Convention (see also paragraph 50 below). That provision reads:

A. Admissibility

48. The Government submitted that the applicant had failed to complain to a court under Article 125 of the Code of Criminal Procedure (see paragraph 42 above) about the investigating authority's actions and decisions.

49. The applicant submitted that under Article 125 of the Code only investigators' illegal actions and decisions could be complained about, while the investigators in the proceedings concerning her sexual abuse had acted in accordance with domestic law which contained no provisions prohibiting secondary traumatisation.

50. The Court considers that the Government's objection raises issues which are closely linked to the merits of the applicant's complaints. Thus, it considers that this matter falls to be examined below under the substantive provisions of the Convention. The Court further notes that the applicant's complaint concerns exclusively the issues of secondary victimisation, the applicant not complaining about the effectiveness of the investigation into her alleged sexual abuse as such. In Y. v. Slovenia (no. 41107/10, §§ 74 — 75, ECHR 2015 (extracts)) the effectiveness of the relevant investigation was examined under Article 3 of the Convention, whilst the issue of secondary victimisation — concerning the questioning of the applicant at trial hearings when she was no longer a minor — was addressed under Article 8. In J.L. v. Italy (no. 5671/16, §§ 117 — 42, 27 May 2021), which concerned the question of secondary victimisation on account of comments in respect of the adult applicant in the reasoning of the judgment, this aspect was also examined under Article 8. However, closer to the present case, in N. . v. Turkey, both the effectiveness of the relevant investigation and the serious allegations of secondary victimisation of a minor victim of sexual abuse, were examined under Article 3 and Article 8 together (see N. . v. Turkey, no. 40591/11, § 90, 9 February 2021). Having regard to the applicant's acute vulnerability and particularly serious nature of her alleged secondary victimisation (see paragraphs 55 and 69 below), attaining the severity threshold under Article 3 (ibid., § 100), the Court considers that the case at hand falls to be examined under that latter provision of the Convention. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

51. The applicant argued that her repeated interviews and the investigative activities involving contact with the perpetrators, in which she had been obliged to participate under domestic law which did not protect her against secondary traumatisation, had caused her severe stress and mental suffering, leading to serious psychological disorders requiring treatment. Being interviewed in the Investigative Committee's ordinary offices by different investigators, the majority of whom were of the opposite gender, and, during one confrontation, by two male lawyers for the accused; being asked humiliating and accusing questions; or having to talk about her sexual abuse in the presence of the brother of one of the defendants, had also added to the ordeal. She had experienced fear, anxiety, frustration and powerlessness. The authorities had not tried to prevent her reliving the traumatic events she had survived, subjecting her to inhuman treatment.

52. The Government disagreed, arguing that the domestic law regulating criminal procedure in cases of sexual abuse of minors and its application in the applicant's case had fully complied with the Convention. The investigating and judicial authorities' actions and decisions had been lawful and necessary for a proper investigation and for the respect of the defendants' rights. They had taken all possible measures to minimise the negative consequences of psychologically traumatic situations connected to the applicant's participation in the criminal proceedings. Training involving psychologists, educators and forensic experts was systematically organised for investigators and prosecutors, and guidelines for the investigation of crimes against the sexual integrity of minors were being developed. The Government also noted that in 2015 the Investigative Committee had issued an order concerning the equipping of special rooms for investigative activities involving minors, including one-way mirrors, video-recording devices and furniture which created a comfortable and relaxed environment.

2. The Court's assessment

In cases of alleged sexual abuse of children those obligations require the effective implementation of children's rights to have their best interests as a primary consideration and to have their particular vulnerability and corresponding needs adequately addressed, in order to protect them against secondary victimisation (see N. . v. Turkey, cited above, §§ 95 and 101; and X and Others v. Bulgaria [GC], no. 22457/16, § 192, 2 February 2021). The right to human dignity and psychological integrity requires particular attention where a child is the victim of violence. In interpreting the State's above-mentioned obligations under the Convention, the Court will have regard to the relevant international instruments, and specifically the Lanzarote Convention (see ibid., and R.B. v. Estonia, no. 22597/16, §§ 83 — 84, 22 June 2021).

55. In the present case, the applicant, a girl aged 12 at the beginning of the investigation in February 2019 (who had lost her mother and experienced placement in an orphanage), had to participate — over the period of one year and seven months — in repeated interviews about her sexual abuse, to repeat her statements at the places where the abuse had allegedly been committed, to identify and confront the perpetrators in person, and to be questioned again at the trial against one of them.

56. Only the first interview was video-recorded, and the recording was lost on the same day (see paragraph 14 above). As the Court has noted previously, in order to keep the number of interviews to a minimum and thus avoid further trauma, the Lanzarote Convention (Article 35) provides for the use of video-recording and recommends that such recordings should be accepted as evidence (see X and Others v. Bulgaria, cited above, § 214). The Russian Code of Criminal Procedure makes it obligatory to videotape all investigative activities with victims of crimes against sexual integrity aged under 16 (see paragraph 41 above). However, the Code does not specify the rationale behind that rule, in particular that the investigations and criminal proceedings should aim at avoiding aggravation of the trauma experienced by the child, and should be carried out in the best interests of the child. Nor does it contain provisions ensuring that the number of interviews be as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings (see Articles 30 and 35 of the Lanzarote Convention).

57. This may explain the objection by the applicant's guardian to the videotaping of investigative actions which — in the absence of the above guarantees — could have been seen as an additional hurdle for the applicant (see paragraph 22 above). In any event, even before the decision of 4 September 2019 allowing that objection, none of the interviews that followed the first interview were videotaped.

61. In addition to the numerous interviews, the applicant had to repeat her statements at the places in which her alleged abuse had taken place, which further exacerbated her trauma. It has not been shown by the authorities that this was necessary, and, indeed, such «verification» of the applicant's statements was done — in respect of the offences allegedly committed by two of the four alleged perpetrators — with the help of photographs (see paragraph 16 above). Furthermore, in one of the flats the «verification» was conducted in the presence of a brother of one of the perpetrators, which augmented the applicant's stress. The Government explained this by the fact that the person in question was the owner of the flat. They did not, however, show that his presence had been necessary and outweighed the interests of the child.

62. Of particular concern for the Court is the applicant's contact with the alleged perpetrators (compare Y. v. Slovenia, cited above, §§ 105 — 09, in which the applicant was not a minor when subjected to personal cross-examination by a defendant). The Lanzarote Convention calls for ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, unless the best interests of the child or the investigations and proceedings require it (Article 31). The applicant had to identify two perpetrators while seeing them in real time in person. Although she was in a room with a one-way mirror, she was scared and stressed that the perpetrator would see her (see paragraph 37 above), which could have been a result of insufficient explanations and reassurances given to her. On one such occasion the perpetrator entered the room in which the applicant was present, because of the investigator's mistake. The applicant became very scared and took a long time to calm down (ibid.). Confronting the alleged perpetrators — which is not prohibited or subject to special provisions in proceedings concerning child victims of sexual abuse under the Code of Criminal Procedure (see paragraph 41 above) — was a particularly distressing experience for the applicant (see paragraphs 20, 31 and 37 above), further aggravated by the fact that one of them was assisted by two lawyers who subjected the applicant to intense questioning. No alternatives, which would have enabled the defence to put questions in a manner less disturbing for the victim, were offered (see Vronchenko v. Estonia, no. 59632/09, §§ 61 and 65, 18 July 2013).

63. According to the Government, training was systematically organised for investigators, and guidelines for investigating crimes against the sexual integrity of minors were being developed. However, regrettably, there is no indication that the investigators involved in the proceedings concerning the applicant's sexual abuse had been trained for this purpose (see the relevant provision in Articles 34 and 35 of the Lanzarote Convention; see also A.P. v. the Republic of Moldova, no. 41086/12, § 35, 26 October 2021).

64. The Court notes that during the above-mentioned investigative activities, the applicant displayed signs of psychological trauma, typical for child victims of sexual abuse, reliving shame, emotional stress, nervous overstrain and fear. Those reactions were especially strong when she had to see the perpetrators during the identification parades or confront them in person, assisted by their lawyers, which prompted her emotional breakdown. She needed psychological rehabilitation and was in a state of high anxiety and severe emotional stress, and was exhausted emotionally and physically (see paragraph 37 above).

65. The investigators were aware of the above opinions of the psychologists concerning the applicant's condition (ibid.). Regardless of the time they chose to question the psychologists, that information was readily available throughout the investigation as the psychologists were present during all of the investigative activities in which the applicant had to participate. The Centre of Assistance to Children without Parental Care, which provided the applicant with the assistance from the psychologists, applied unsuccessfully to the head of the Investigative Committee Unit for the Privolzhskiy district of Kazan before the commencement of the investigative activities, asking for enhanced control over the investigation to protect the applicant's rights (see paragraph 31 above). Although it was important that during the investigation the applicant was assisted by psychologists, their opinions were largely ignored. In particular, during the questioning by the investigator L.G. on 18 February 2019, the psychologist stated that it was necessary to avoid the applicant meeting the alleged perpetrators in order to prevent her further traumatisation which might complicate her rehabilitation and worsen her mental state (ibid.). Yet in April 2019 that same investigator held the confrontations between the applicant and two defendants. In June 2019 the investigating unit was informed about the applicant's emotional, mental and physical exhaustion and tendency for depression because of acute overstress, and the psychologists' recommendation to avoid mentally traumatic situations and negative emotions (see paragraph 38 above). One of the investigators granted the applicant's lawyer's request to absolve the applicant from taking part in investigative actions (see paragraph 20 above). The forensic experts' report of 25 June 2019 established that the applicant was in a state of emotional and mental distress because of, inter alia, the investigative activities. The investigator was also informed about the applicant's worrying condition as a result of the psychologists' further interviews in July 2019 (see paragraph 37 above). In the same month, the acting head of the investigating unit granted another request by the applicant's lawyer to absolve her from receiving formal notifications, to avoid an additional negative impact on her psychological health (see paragraph 21 above). Nevertheless, the investigators went ahead with interviewing the applicant seven more times in September and October 2019, and February, May and September 2020. Even with the existing lacunae in the domestic law (see paragraph 56 above), the investigators — referring to their general authority to conduct the investigation — took some decisions aimed at protecting the applicant (to absolve the applicant from taking part in the investigative actions, as noted above, or from a confrontation with one of the defendants, see paragraph 23 above). However, such decisions were not coordinated between the different investigators involved and were not enforced in all proceedings concerning the applicant's sexual abuse.

66. Especially striking are the applicant's continued interviews by the investigators and her examination at the trial before the Privolzhskiy District Court of Kazan on 10 June 2020 — after the commission of forensic experts had diagnosed the applicant, in their report of 17 January 2020, with mental disorder in the form of prolonged depressive reaction, developed as a result of her sexual abuse, tragic family situation and her participation in the investigation and criminal proceedings. Her condition required treatment. Her further participation in the investigation and court proceedings was not recommended (see paragraph 36 above).

67. The Privolzhskiy District Court of Kazan rejected the request to examine the above-mentioned report of 17 January 2020, following the objection of the defence, on the formal grounds that it had been ordered in another set of proceedings concerning the applicant's alleged sexual abuse by a different defendant. The Court has already noted at paragraph 58 above that it was possible to use the same evidence in the different sets of proceedings. Moreover, the report in question had been ordered to remove inconsistencies between the earlier forensic reports obtained in the case against the defendant in the trial in question (see paragraphs 35 and 36 above) and it had already been made part of several of the sets of proceedings concerning the applicant's abuse (see paragraph 25 above). The court's decision lacked reasons showing that the rights of the defence would have been seriously affected and that they had to prevail over the applicant's rights. The court further rejected the prosecutor's repeated requests that the applicant's statements at the preliminary investigation be read out to avoid her examination and therefore her further traumatisation, citing the absence of any evidence against the applicant's participation in the hearing despite the psychologists' opinion that the applicant was suffering from emotional distress and exhaustion with signs of moderate depression and that psychologically traumatic situations and emotional pressure had to be avoided (see paragraphs 27 and 28 above). Contrary to the provisions of the Code of Criminal Procedure, the court did not give any reasons why it considered the applicant's examination at the trial necessary, vaguely referring to «the material examined at the hearing» (ibid.). The applicant was subjected to extensive and detailed questioning about her sexual abuse, albeit without the defendant's personal participation and in a closed hearing. She was also obliged to listen to her statements given at the preliminary investigation and was questioned in respect of alleged inconsistencies. Her examination continued until the maximum duration of two hours was reached, despite the earlier objection by the psychologist that her further traumatisation was taking place. She was subsequently summoned to appear before the court for continued examination three more times (see paragraph 30 above).

68. The Court considers that it was first and foremost the responsibility of the court to ensure that respect for the applicant's personal integrity was adequately protected at the trial (see Y. v. Slovenia, cited above, § 109, and N. . v. Turkey, cited above, § 133), and that an appropriate balancing exercise was conducted assessing the applicant's rights against the rights of the defence (ibid., § 106). It is striking that the judge gave no reasons for his decision to question the applicant and did not take into account the applicant's particular vulnerability as a child victim of sexual abuse, the evidence of the worrying condition of her psychological health, the experts' recommendation against her participation in the hearing, or even the psychologist and the guardian's request to halt her examination because she was being further traumatised. This was incompatible with the sensitive approach required on the part of the authorities to the conduct of criminal proceedings concerning the sexual abuse of a minor (see Y. v. Slovenia, cited above, § 114). The Court notes that Article 36 of the Lanzarote Convention concerns training on the rights of child victims of sexual abuse which should be available for the benefit of all persons involved in the proceedings, in particular judges, prosecutors and lawyers.

69. The applicant saw her condition deteriorate in the course of the proceedings, being diagnosed with post-traumatic stress disorder and suffering from asthenia, anxiety, depression, suicide risk and self-harm (see paragraphs 39 — 40 above). In December 2021, when the proceedings which had begun almost three years previously were still pending, she had to be placed under supervision by a psychiatrist and was in need of lengthy treatment (see paragraph 40 above).

70. Having regard to the Government's submissions that the investigating authority's actions and decisions had fully complied with domestic law (see paragraphs 19 and 52 above), the Government's failure to refer to any examples of the use of the remedy under Article 125 of the Code of Criminal Procedure in a case similar to the present one, and the findings made in respect of the absence of provisions in domestic law ensuring the special protection of the rights of the child victim of sexual abuse in criminal proceedings (see, inter alia, paragraph 56 above), the Court considers that the applicant was not required to challenge in court the actions of the investigating authority. It therefore dismisses the Government's objection.

71. The foregoing considerations are sufficient to enable the Court to conclude that the respondent State — the authorities of which displayed utter disregard for the sufferings of the applicant who was in the situation of acute vulnerability on account of her young age, tragic family situation, experienced placement in an orphanage and the alleged sexual abuse by several individuals — failed to protect her personal integrity in the course of the criminal proceedings against the alleged perpetrators of her sexual abuse, which led to her secondary victimisation.

72. There has accordingly been a violation of Article 3 of the Convention.

III. Application of Article 41 of the Convention

73. Article 41 of the Convention provides:

«If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.»

A. Damage

74. The applicant claimed 1,134,000 Russian roubles (RUB) in respect of pecuniary damage. It comprised RUB 35,000 and RUB 6,947.77 incurred for ten psychotherapy sessions and medication prescribed for her treatment, and RUB 1,134,000 and RUB 140,883.48 for future psychotherapy sessions and medication, respectively, to be received during the following three years. She referred to the psychotherapist's report of 24 December 2021 (see paragraph 40 above). The applicant also claimed an amount, at the Court's discretion, in respect of non-pecuniary damage.

75. The Government did not dispute the calculation of expenses already incurred for psychotherapy and medication, or the recommended psychotherapy for a period of three years, and the corresponding amount. However, they noted that supporting documents in respect of the future expenses for medication were missing, that if the Court awarded compensation for future medical expenses, control over expenditure should be introduced, and that the applicant's guardian had herself been trained as a psychotherapist and chaired an NGO which provided psychotherapy on a non-profit basis. They also referred, without further elaboration, to general provisions in domestic law that children without parental care were entitled to free medical aid in State and municipal medical organisations, and that psychological, pedagogical, medical and social assistance were to be provided to children experiencing learning difficulties at school, and other difficulties in their development and social adaptation, including child victims of crime. The Government submitted that no compensation should be awarded in respect of non-pecuniary damage because the applicant's rights had not been violated.

76. The Court awards the applicant 13,553 euros (EUR) in respect of pecuniary damage, namely the actual and future expenses for psychotherapy and the expenses incurred for medication, plus any tax that may be chargeable. It further awards the applicant EUR 20,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

FOR THESE REASONS, THE COURT, UNANIMOUSLY

1. Holds that it has jurisdiction to deal with the applicant's complaints in so far as they relate to facts that took place before 16 September 2022;

2. Decides to join to the merits the Government's objection concerning the exhaustion of domestic remedies, and dismisses it;

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 13,553 (thirteen thousand five hundred and fifty-three euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 6,741 (six thousand seven hundred and forty-one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Pere Pastor Vilanova President

Milan Blaško Registrar

Appendix