#ECHR: A.P. v. Armenia, judgment: State’s failure to protect fourteen-year-old

A.P. v. Armenia, judgment: State’s failure to protect fourteen-year-old pupil with an intellectual disability

from sexual abuse by a teacher in her State school: violation

https://go.echr.coe.int/Zv2us

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Legal summary

June 2024

A.P. v. Armenia – 58737/14

Judgment 18.6.2024 [Section IV]

Article 3

Positive obligations

State’s failure to protect fourteen-year-old pupil with intellectual disability from sexual abuse in her State school by a teacher, also a public official: violation

Article 8

Article 8-1

Respect for private life

Publication of applicant’s identity and texts of judicial decisions dismissing her civil damages claim for sexual abuse on the publicly accessible online official judicial database, despite her specific request not to publish that information: violation

Facts – The applicant, who has an intellectual disability and was fourteen years old at the material time, was subjected to sexual abuse in her State school by A.G., a sports teacher and the then administrative head of the village. Following a complaint by the applicant’s mother, criminal proceedings were instituted against A.G. At the conclusion of a trial held in camera, A.G. was convicted of aggravated rape of a minor and indecent acts committed in respect of a minor and sentenced to eight years’ imprisonment. The trial court found it established that he had sexually assaulted the applicant on four different occasions between November 2011 and February 2012. The last incident had occurred on 22 February 2012 in a classroom at school.

A civil compensation claim lodged on behalf of the applicant seeking non-pecuniary damages from the State for the sexual abuse suffered by her was unsuccessful. Despite the applicant’s specific request that no information from the civil proceedings be published on the publicly accessible online official judicial database, Datalex, her full name and address, as well as the complete text of the judicial decisions rendered within the framework of the claim were published on that platform.

Law – Article 3:

The applicant, owing to her relatively young age and disability had been in a particularly vulnerable situation. Therefore, the sexual abuse and violence to which she had been subjected had been undoubtedly serious enough to fall within the scope of Article 3.

The case fell to be examined from the standpoint of the State’s positive “substantive” obligations under Article 3 to protect children, and especially children with disabilities, from sexual abuse within the context of State education.

(a) Regarding the obligation to put in place an appropriate legislative and regulatory framework – The applicant had not called into question the existence in the respondent State’s domestic law of criminal legislation aimed at preventing and punishing child sexual abuse. The Criminal Code provisions at the time on the basis of which A.G. had been convicted appeared to cover the acts she had complained of. However, there was nothing to suggest that any mechanisms designed to ensure the prevention, detection and reporting of any ill-treatment (including sexual abuse) in educational institutions had been put in place by the time of the material events, such procedures being fundamental to the enforcement of the criminal laws, to the prevention of such ill-treatment and – more generally – to the fulfilment of the State’s positive protective obligation. Indeed, the Human Rights Defender (the Ombudsman) in her ad hoc report concerning the observance by Armenia of its obligations under the United Nations Convention on the Rights of the Child covering the period from 2013 until 2022, had reported the lack of such mechanisms, and recommended that the authorities created procedures for the prevention, detection and reporting of ill-treatment in schools. She had also noted that neither parents nor children knew to whom or to which body they should turn in the event of ill-treatment and that children had reported the absence of effective channels in schools through which to lodge complaints.

In the Court’s opinion the facts of the present case illustrated the consequence of the complete absence of any protective mechanisms via which to detect and report abuse. In particular, the witnesses’ accounts (pupils, teachers and the headmistress of the school) of the events of 22 February 2012 demonstrated that none of them had been aware of what actions should be taken when confronted with a situation of abuse – never mind when such a situation had been actually happening on the school premises during study hours. There was nothing to suggest that the teachers and those in charge had been instructed on how to identify child abuse, had received clear guidance and training regarding what to do or where to turn upon receiving a report of abuse or that there had been any special mechanisms and safeguards in place for children who had been even more vulnerable to abuse and exploitation owing to a disability. As a result, having received reports both on 18 and 22 February 2012 about the suspected and then actual abuse of the applicant, the teachers had failed to undertake any action. Nor had the headmistress, despite having been informed of the matter on 22 February 2012, taken any formal action – not even reporting the abuse to the relevant authorities and/or informing the family. Thus, her family being completely unaware of the events the day before, the applicant had been apparently sent to school as usual, whereas there was no indication that any formal action had been undertaken in respect of A.G., who had apparently continued his teaching activities following the last incident.

In that connection, the Court reiterated that it was not necessary to show that “but for” an omission on the part of the State the ill-treatment would not have happened. A failure to take readily available measures that could have had a real prospect of altering the outcome or mitigating the harm caused was sufficient to engage the responsibility of the State. Adequate action taken by the class teacher following a tip-off from a student regarding the possibility that the applicant had been abused by A.G on 18 February 2012 could reasonably have been expected to prevent any further instances of the applicant being abused. At the same time, proper reaction and follow-up measures in respect of the report of 22 February 2012 on the part of the alerted teachers and subsequently the headmistress could have been reasonably expected to at least “minimise the damage” already suffered by the applicant.

(b) Regarding the obligation to take preventive operational measures – Given that the applicant had been in a particularly vulnerable situation being mentally disabled, the obligation imposed on the authorities to take preventive operational measures had been heightened and had required them to exercise particular vigilance.

The Court attached particular importance to the fact that the abuse at issue had taken place within the context of a relationship of trust and authority resulting from A.G.’s position as an educator and administrative head of the village where the applicant and her family had lived.

The school authorities’ positive obligation to protect the applicant had been triggered at the very latest on 18 February 2012 when the applicant’s class teacher had received the tip-off. However, there was no indication that she had followed up on such serious concerns. That tip-off had been four days before the applicant had been further abused. That likelihood should have been addressed, at a minimum, by informing the school administration and/or the other teachers – that had not been done.

The Court noted the importance of not only prevention and detection but also of reporting within the context of the need to protect minors from sexual abuse – particularly when the abuser was in a position of authority over the child.

Furthermore, on 22 February 2012, while three teachers had been alerted one after the other by a student that the applicant was being abused during class hours, they had failed to take any meaningful action. Eventually, the only action undertaken by the class teacher and the headmistress had been to speak to the applicant and to send her home, without even informing her parents of the incident in question. There was nothing to suggest that the headmistress had at least spoken with A.G. in order to question him about the incident or that she had taken any formal action to clarify the matter and/or bring it to the attention of the relevant authorities.

It was not for the Court to speculate whether the failures on the part of the teachers and headmistress had been owing to the fact that A.G. had not been only their colleague but also the administrative head of the village, apparently with authority in the village. At the same time all his colleagues (except one) who had been questioned during the criminal proceedings had either described him positively or refrained from ascribing to him any characteristics at all. From the headmistress’s pre-trial statement and court testimony, it transpired that her perspective and attitude sat uncomfortably with the school authorities’ obligation to protect pupils from ill-treatment in general and her role as a public servant responsible for the overall functioning of the school and – most importantly the pupils’ safety (including their protection from wrongful actions on the part of pedagogical staff provided for under domestic law).

(c) Conclusion – The respondent State had failed to fulfil its positive obligation to protect the applicant from the sexual abuse to which she had been subjected while a pupil in a State school and, moreover, at the hands of a person who had also been a public official at the material time. That obligation had not been fulfilled, given the State’s failure to ensure the existence of an appropriate legislative and regulatory framework for the prevention, detection and reporting of sexual abuse of minors, including the training of persons working in contact with children, as well as the State school authorities’ failure to take appropriate measures to adequately protect the applicant from the sexual abuse to which she had fallen victim.

Conclusion: violation (unanimously).

Article 8:

The civil claim lodged on behalf of the applicant had been directly linked to and had been the consequence of the sexual abuse suffered by her. It appeared that the domestic courts had not taken a decision on the applicant’s request for her claim to be examined in camera and not to publish its details. Given that the courts had essentially refused to examine the merits of the claim, no actual hearings had been apparently held.

As a result of the lack of a decision, the reasons, if any, for not allowing the applicant’s request not to disclose her identity and other personal information remained unknown. Nevertheless, the applicant’s full name and address – together with the judicial decisions rendered in the proceedings had been uploaded to Datalex in their entirety. The Civil Court of Appeal’s decision contained a number of details concerning both the grounds for her claim and the criminal case against A.G. who as a former public official had been known at the very least at the local level in the given region. Even though the impugned publication had not explicitly stated that the applicant had been subjected to sexual abuse, given the details it had contained, it would be difficult to argue that one could not have been able to at least form the general idea that the applicant had been subjected to some kind of ill-treatment under circumstances that had potentially engaged the State’s responsibility. Due to the disclosure of that information the applicant and her family had been left in constant uncertainty as to whether someone would have been able to identify the applicant as a victim of a sexual crime – something that would certainly have been even more traumatising for someone who had lived in a small village where traditional attitudes prevailed.

Therefore, the disclosure of the applicant’s identity coupled with the publication of the abovementioned decision on Datalex had amounted to an interference with her right to respect for her private life. As, neither the Government nor the domestic courts had indicated a legal basis for the interference the Court found that the publication of the impugned information had not been “in accordance with the law”.

Conclusion: violation (unanimously).

The Court also found, unanimously, a violation of Article 13 on account of the absence of a possibility for the applicant to claim compensation for non-pecuniary damage she had suffered as a consequence of the respondent State’s failure to fulfil its positive obligation to protect her from treatment contrary to Article 3. In that connection, the Court noted that the legal situation in that respect at the time of the events at issue had been similar to the one examined in Poghosyan and Baghdasaryan v. Armenia and thus there was no reason for it to depart from the findings in that judgment.

Article 41: EUR 32,000 in respect of non-pecuniary damage.

(See also Poghosyan and Baghdasaryan v. Armenia, 22999/06, 12 June 2012, Legal Summary; O’Keeffe v. Ireland [GC], 35810/09, 28 January 2014, Legal Summary; X and Others v. Bulgaria [GC], 22457/16, 2 February 2021, Legal Summary)