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2 March 2019




Anita Skippervik:

Norwegian methods of investigation of child protection cases do not meet international standards


Recently, a report has come from the Board of Health Supervision (
Helsetilsynet), as the state's reply to the demand for examining the child protection system Barnevernet (the CPS). Several municipalities, too, have formulated a mandate and having a revision report. The Board of Health Supervision carries out certain yearly checks of Barnevernet and the County Governor corrects departure upon departure from the rules.

One group is still excluded: the victims of Barnevernet's violations of the law.

In several cases before the European Court of Human Rights (ECtHR) it has been established that not interviewing or examining the private party constitutes a violation of the
European Convention on Human Rights (ECHR), both of Article 6 and Article 3. Still, the Norwegian state thinks it is doing a good, decent job out of scrutinising Barnevernet – with a limited mandate and without letting the private party participate.

The ECtHR has had many cases under consideration about illegal use of power, cases in which the conditions for investigation have been fragmentarily assessed.

In
Bouyid v. Belgium from 2015 (§§ 115 – 123), the ECtHR has formulated concrete demands on investigation with assessment criteria which must be fulfilled in order not to contravene the Convention. In Hentschel and Stark v. Germany from 2017 (§ 79), these demands are repeated, and it is stated that they do not apply only in criminal law but also in other areas of public authority.

In a recent judgment from the ECtHR,
Gablishvili and others v. Georgia (no 7088/11) from 21 February 2019, which is about another type of abuse (although sometimes no different from what some experience from Barnevernet) – physical violence from prison guards in connection with an attempted escape – the ECtHR concluded that there had been a lack of investigation into the question of whether the prison guards had committed criminal actions. Not to have interviewed the complainants, but only the prison guards, after which the case was dropped, was not sufficient investigation. This, the ECtHR concluded, was a violation against ECHR Article 3.

From the judgment:

68. It is also apparent from the prosecutor’s decision to terminate the criminal investigation that the conclusions were only based on the testimony given by the prison officers involved in the incident. The prosecutor accepted the credibility of the prison officers’ statements without giving any convincing reasons for doing so, despite the fact that those statements might have been subjective and aimed at evading criminal liability for the purported ill-treatment of the applicants. The credibility of the prison officers’ statements should have been questioned, as the investigation was supposed to establish whether they were liable to face criminal charges (see Ognyanova and Choban v. Bulgaria, no. 46317/99, § 99, 23 February 2006, andAntipenkov v. Russia, no. 33470/03, § 69, 15 October 2009). Furthermore, the questioning of the arresting officers was superficial. Having examined the substance of their statements, the Court notes that all of them made formulaic statements to the effect that they had not participated in any ill‑treatment and the physical force they had used to arrest the applicants had been necessary (see Dvalishvili, cited above, § 49, and Buntov v. Russia, no. 27026/10, § 131, 5 June 2012). It is also noticeable that notwithstanding the strong probative value that forensic medical evidence normally attracts, the investigation did not even attempt to seek corroboration through it (see Dvalishvili, cited above, § 48). 

In §67, it is also stressed that rapid reaction through investigations is required in order to uphold the confidence of the public, to satisfy requirements of the law, and to prevent secret arrangements (like what was revealed regarding the County Governor service in the case of the Vestlund youth institution) and tolerance of illegal actions. The fact that it took a long time before an official investigation was carried out could not be accepted by the Court.

67. Furthermore, as the Court has emphasised on many previous occasions, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Bouyid, cited above, § 133, and Mocanu and Others, cited above, § 323). In the instant case, notwithstanding the fact that the authorities promptly arranged a forensic examination of the applicants’ injuries, even if it was not unproblematic, the Court cannot overlook the length of time it took before an official investigation got under way and statements from pertinent witnesses were obtained (see paragraphs 18-24 above; see also Identoba and Others v. Georgia, no. 73235/12, § 66, 12 May 2015, andTimurtaş v. Turkey, no. 23531/94, § 89, ECHR 2000‑VI). Thus, the investigation fell short of the relevant standards in this regard as well. 


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Back to investigations of Barnevernet.

Many have reported Barnevernet to the police, cf the Criminal Law §§170-175, and many more have tried but have been turned away. From what is known to me, the police dismiss this type of case without any investigation.

For these cases, clearly the same demands must apply as those which the ECtHR lists in the cases mentioned above. This also means that the demands of the ECtHR concerning investigations apply to investigations which the authorities establish reluctantly, after pressure from many victims. The state has lingered for many years, and has only made use of very limited mandates as an answer to pressure to uphold the confidence of the public or to try and re-establish it and meet international criticism. In particular, investigations which have been undertaken have not taken up the serious accusations and have not involved the private parties, while statements and documents from Barnevernet have been uncritically accepted. In this way the state maintains tolerance of illegal actions by Barnevernet, and of all the consequent errors in further instances. To the world they present a picture of having done something about the challenges and tolerance of illegal actions without righting the individual cases.

If a case reaches the European Court of Human Rights which presents a problem in such terms, the previous judgments make it strongly possible that Norway, its Board of Health Supervision, The County Governor service and the Norwegian police service will be found to have violated the European Convention on Human Rights Article 3.



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The Board of Health Supervision's report:

Det å reise vasker øynene
(Travel cleanses the eyes)
January 2019


The Board's English web page:
The Board of Health Supervision
https://www.helsetilsynet.no/en/

The Board's Norwegian web page:
Helsetilsynet
https://www.helsetilsynet.no




Comment on the report:

Olav Terje Bergo:
The stubborn blindness of the defenders of Barnevernet
20 February 2019




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