The European Court of Human Rights (ECtHR) has just rendered its Grand Chamber judgment in the case of X and Others v. Bulgaria, a case concerning allegations of sexual abuse of three children in a Bulgarian orphanage prior to their adoption. The Strasbourg-based court ruled that the Bulgarian authorities did not violate the prohibition of inhuman or degrading treatment in its substantive dimension, but that they breached its procedural limb by failing to use all the available investigation mechanisms to shed light on the facts of the case.
The applicants before the ECtHR, a boy and two girls of Bulgarian origin, were placed in an orphanage in Bulgaria before being adopted by an Italian couple in June 2012, when they were aged 12, 10 and nine respectively. Soon afterwards, their adoptive parents reported to various Italian authorities that the children had been subjected to serious sexual abuse while in the orphanage in Bulgaria. The children were examined by two specialised Italian psychologists in 2012 and 2013. With the assistance of the Italian public-interest association ‘Telefono Azzurro’, the applicant’s father reported the matter to the Italian and the Bulgarian authorities. The latter contacted the applicants’ father in Bulgarian to request for identification of the children, but there was no follow-up to this correspondence. After learning about the matter through a journalistic article, the Bulgarian authorities started an investigation, which was discontinued at a later stage on the grounds that there was no evidence that any offences had been committed. Soon afterwards, in 2014, the Italian Ministry of Justice made a formal approach to the Bulgarian authorities and a further investigation was opened, but the regional prosecutor’s office in Bulgaria confirmed the discontinuance decision.
The applicants brought the case before the ECtHR in April 2016, claiming that several rights of the European Convention on Human Rights (ECHR) had been breached because the Bulgarian authorities had failed in their obligations to protect them against such treatment and to conduct an investigation. Their case was unanimously dismissed by the ECtHR’s Chamber judgment of 17 January 2019.
Today, the Grand Chamber of the ECtHR unanimously concluded that the Bulgarian authorities had not infringed the substantive prohibition of inhuman or degrading treatment in Article 3 ECHR. The ECtHR noted in this regard that it did not have sufficient information to find that the Bulgarian authorities knew or ought to have known of a real and immediate risk to the applicants of being subjected to ill-treatment, such as to give rise to an obligation to take preventive operational measures to protect them against such a risk.
However, today’s judgment concluded that there had been a breach of the procedural obligations inherent in Article 3 ECHR, because the Bulgarian authorities had failed to (i) make use of the available investigation and international cooperation mechanisms, (ii) take all reasonable measures to shed light on the facts of the case, and (iii) undertake a full and careful analysis of the evidence before them. According to the ECtHR, these omissions were enough to conclude that the investigation carried out had not been effective for the purposes of Article 3 ECHR.
The judgment is available here.