Insufficient and ineffective investigation of allegations of rape violated the privacy of the victim and constituted degrading treatment


E.B. v. Romania 19.03.2019 (no. 49089/10)

see here


The case concerned the applicant’s complaint that her accusations of rape had not been properly
investigated and that she had been deprived of her procedural rights.

The Court found that the authorities had failed to carry out a proper investigation and had overly
emphasised the fact that she had not resisted her alleged attacker. Owing to her slight intellectual
incapacity, her case had required a context-sensitive investigation, but there had not been one.
The authorities’ approach had undermined the applicant’s rights as a victim of violence, had
deprived domestic law of its purpose of effectively punishing and prosecuting sexual offences, and
had raised doubts about the system put in place by the Romanian State under its international


The applicant, E.B., is a Romanian national who was born in 1973 and lives in Mica.

Ms E.B. alleged that while she was returning home after working in the fields in May 2008 she met a
man who engaged her in conversation and tried to persuade her to have oral sex with him. She
refused but he eventually grabbed her, pulled her towards a nearby cemetery and threatened her
with a knife. He told her to undress and lie on the ground and, in a state of shock, she obeyed. He
then raped her and warned her not to tell anyone.

She went straight to the local police station, but it was closed and so she went home, showered and
told her family, including her husband, what had happened. The next day she went to the police in
Mica and lodged a criminal complaint. The police questioned the man, T.F.S., who denied rape. The
day afterwards she went to the Târgu-Mureş Institute of Forensic Medicine for an examination. The
report noted she had two bruises on her right arm and no “rape-specific” injuries in the genital area.
In January 2009 the prosecutor’s office attached to the Târnăveni District Court decided against
opening criminal proceedings on the grounds that T.F.S.’s actions had not constituted a crime. It
found in particular that Ms E.B. had failed to ask for help before the alleged rape, although she had
passed by a petrol station beforehand; the forensic examination had shown no injuries to the genital
area; and it was not clear when the bruises on the arm had been caused.

In February 2009 she complained to the chief prosecutor about the decision not to prosecute. She
mentioned T.F.S.’s threats as the reason she had complied with his orders and stated that the police
had not informed her of her procedural rights as a victim.

The chief prosecutor rejected her complaint but in May 2009 the Târnăveni District Court referred
the case back to the prosecutor’s office and ordered it to take various investigatory steps. It found
that the prosecutor’s conclusion of consensual sex was not supported by the evidence and that the
absence of injuries to the genital area was consistent with the use of threats.

The prosecutor appealed in October 2009 and in February 2011 the Mureş County Court rejected
the applicant’ s complaint with final effect.

The court found, among other things, that the forensic report had not supported her allegation as it
had not shown any injuries in the genital area specific to rape and there was no date for the injuries
to her arm. It found other investigatory measures, such as a confrontation between Ms E.B. and
T.F.S., to be unnecessary. The applicant was ordered to pay court fees.


Articles 3 and 8

The Court, noting that it was not bound by the legal grounds given by applicants, decided to examine
Ms E.B.’s application under Article 3 and Article 8 (right to respect for private and family life).
It reiterated that States had duties under both of those provisions to investigate and prosecute
sexual crimes effectively. That meant that they were required to penalise and prosecute any
non-consensual sexual act, including where there had been no physical resistance.

The authorities dealing with Ms E.B.’s case had been presented with conflicting accounts and their
task had been to determine whether the sex had been consensual or not. Such situations required
context-sensitive assessments of the credibility of statements and the examination of the
surrounding circumstances. That could involve questioning people known to those involved to
establish each side’s trustworthiness, and might in addition require a psychologist’s assessment.
However, such steps had not been taken.

The Court noted that Ms E.B. had been diagnosed with a slight intellectual disability, a heightened
state of vulnerability which meant the authorities’ investigation had to be particularly diligent. The
question of the validity of any consent should also have been central to the case. Instead, neither
the prosecutors nor the courts had taken account of her personal situation, or the circumstances of
the incident, which had occurred in the evening, near a cemetery.

In addition, it appeared that the prosecutors’ and courts’ conclusions had been based on Ms E.B. not
having asked for help and not having any injuries associated with rape. However, the Romanian
Criminal Code did not mention any requirement for a victim to show physical resistance – the key
issue was how words such as “constraint” and “lack of capacity to express his/her will” were interpreted. In that context, the Government’s submissions had not demonstrated any settled or
consistent court practice when it came to rape involving little or no physical injury.

The Court concluded that the authorities had placed too much emphasis on the lack of proof of
resistance by Ms E.B. and had failed to take a context-sensitive approach, including an assessment of
her reactions based on her mental capacity, which she had furthermore requested.

Ms E.B. had also alleged that she had been subjected to further suffering because she had not been
informed of her procedural rights or provided with free legal assistance and counselling and the
authorities had not disproved those statements.

The Court noted that the Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence required countries to protect the rights and interests of
victims, including informing them of their rights and the services at their disposal. The approach
taken in Ms E.B.’s case had deprived the national legal framework on violence against women and
on the protection of victims of its purpose and had been inconsistent with international legal

Without expressing a view on the guilt of the alleged rapist, the Court held that the authorities’
failure to respond adequately to Ms E.B.’s allegations or to adequately respect her rights as a victim
of violence raised doubts about the effectiveness of the system put in place by Romania under its
international obligations. It had also left the criminal proceedings in the case devoid of meaning.
The authorities had thus failed to fulfil their duty to apply effectively a criminal-law system capable
of punishing all forms of rape and sexual abuse and to provide adequate protection for Ms E.B.’s
physical integrity. There had therefore been a violation of both Article 3 and Article 8.

Just satisfaction (Article 41)

The Court held that Romania was to pay the applicant 12,000 euros in respect of non-pecuniary
damage and EUR 1,400 in respect of costs and expenses( editing).



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