Complaint of rape of a minor. Inadequate investigation and prosecution of a man accused of a more heinous crime than rape violated the procedural part of privacy and the prohibition of humiliating treatment.

JUDGMENT

Z v. Bulgaria 28.05.2020  (no.  39257/17)

see here 

SUMMARY

Ineffective judicial inquiry into vulnerable groups. Procedural part of prohibition of inhuman and degrading treatment and respect for privacy.

The applicant, a 13-year-old minor, complained to the competent prosecutor’s office that she had been raped by a friend of hers. He provided details and was examined by a psychiatrist who confirmed the patient’s suffering mental state. However, the competent prosecutor prosecuted the alleged rapist not for rape but for the mildest offense of committing a sexual act with a minor. The competent prosecutor rejected the request of the minor’s attorney for further investigation.

The Cour has consistently ruled that states are required under Articles 3 and 8 of the Convention to establish provisions that criminalize child sexual abuse and that they must be put into practice through effective investigation and prosecution.

In the present case, the ECtHR ruled that while the proceedings as a whole should have complied with the requirement to conduct an effective investigation and prosecution against such serious allegations, neither the prosecution nor the court effectively investigated the events, in the light of the fact that for a sensitive case involving a minor.

The ECtHR, without ruling on the rape charge, ruled that there had been a breach of Article 3 of the Code of Criminal Procedure because the competent national authorities had not conducted an effective investigation to properly fulfill their positive obligations under the Convention on Inhuman or Degrading Treatment or Punishment , and Article 8 of the applicant’s right to privacy.

PROVISIONS

Article 3,

Article 8

PRINCIPAL FACTS

The applicant, Ms Z, is a British national who was born in 2001 and lives in a small village in the
Yambol region (Bulgaria).

The case concerned the applicant’s complaint of an ineffective official response to her allegation
that she had been raped.

On 26 February 2015 the applicant, 13 years old at the time, reported to the police that she had
been raped the previous night when staying at a friend’s house. A criminal investigation was
immediately opened by the local district prosecution service and the applicant and alleged offender,
G.S., her friend’s boyfriend, were interviewed.

The applicant stated that she had been sleeping when G.S. had got into bed with her. She had at first
turned to face the wall and pretended to be asleep, but G.S. had started groping her so she pushed
him away and clutched her legs together. However, he continued the assault and then raped her.

G.S. denied the rape throughout the ensuing investigation, which also included further witness
questioning (including the applicant’s friend and friend’s parents), an inspection of the crime scene,
and a psychological examination of the applicant. The psychological report concluded among other
things that the applicant had experienced intense fear and shame, which had temporarily blocked
her reactions.

In August 2015 the district prosecutor concluded that the applicant had been raped and sent the file
to the regional prosecution service to proceed with the investigation.

However, the regional prosecutor assigned to the case refused to follow the recommendation to
prosecute for rape, finding that the evidence collected during the investigation, in particular the
victim’s statement, did not meet the legal requirement for that crime. The applicant’s lawyer and
mother continued to attempt to have G.S. prosecuted on charges of rape and requested a number of
further investigative measures, in particular that the applicant be examined again following her
frequent self-harming after the incident, without success.

G.S. was thus indicted for the crime of sexual intercourse with a person under the age of 14. The
courts found him guilty as charged in May 2016 and sentenced him to one year and four months’
imprisonment, suspended for three years.

Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect
for private and family life), the applicant complained that the authorities had failed to effectively
investigate her allegation of rape and, by prosecuting for a lesser offence, also had inadequately
punished the offender.

THE DECISION OF THE COURT

As regards the Convention requirements relating to the effectiveness of an investigation, the Court has held that any investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and, if appropriate, punishment of those responsible for an offence. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident .

Moreover, in so far as the investigation leads to charges being brought before the national courts, the positive obligations under Article 3 of the Convention extend to the trial stage of the proceedings. In such cases the proceedings as a whole, including the trial stage, must meet the requirements of the prohibition enshrined in Article .This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished.

In addition, in accordance with contemporary standards and trends in the area, the Contracting States’ positive obligations under Articles 3 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.

The Court has previously noted that the evolving understanding of the manner in which rape is experienced by the victim has shown that victims of sexual abuse – in particular, girls below the age of majority – often provide no physical resistance because of a variety of psychological factors or because they fear violence on the part of the perpetrator.

The Court has also repeatedly held that in cases of sexual abuse children are particularly vulnerable.

The Court has likewise held that States are required under Articles 3 and 8 of the Convention to enact provisions criminalising the sexual abuse of children and to apply them in practice through effective investigation and prosecution. These obligations also stem from other international instruments, such as, inter alia, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence.

  • Application of these principles to the present situation

As regards the core of the complaint, namely that the allegation about having been raped was not properly investigated and no prosecution for rape was undertaken, the Court observes that Article 152 of the Bulgarian CC and its interpretation by the domestic courts has made lack of consent on the part of the alleged victim an element of the crime of rape and there is no requirement of physical resistance by the victim.

The Court notes that in the present case a criminal investigation was initiated immediately into the applicant’s complaint, and a number of investigative measures were carried out promptly. However, a number of further investigative measures were requested by the applicant’s lawyer but were not carried out. Among those, important in the Court’s view was the request that an expert examination of the applicant be ordered for traces of self-harming after the incident and their significance in interpreting the applicant’s consent to the sexual act .

At the end of the investigation, despite an earlier conclusion by the district prosecutor that, on the face of the evidence, rape had been committed, an indictment was drawn up against the accused for the crime of sexual intercourse with a person under the age of fourteen, which was a statutory offence punishable irrespective of whether the victim had consented or not. The Court has already underlined the importance of interpreting domestic definitions of rape in such a manner that they would encompass any non-consensual sexual act and that “the investigation and its conclusions must be centred on the issue of non-consent”.

In the present case, the prosecutor failed to examine, in particular, whether the applicant’s actions and the overall context indicated a lack of consent by her and whether the perpetrator’s actions could thus be qualified as rape. This failure is particularly striking in view of the submissions made by the applicant’s lawyer explicitly prompting the authorities to prosecute the perpetrator for rape , and the initial recommendation of the lower prosecutor.

When refusing to prosecute for rape, the higher prosecutor only briefly noted that none of the three hypotheses under Article 152 of the CC had been supported by the facts, and in particular by the testimony of the victim herself . The prosecution, however, failed to engage in any meaningful examination of the evidence signifying lack of consent, namely the age of the applicant, the specific circumstances under which the intercourse had taken place, the lack of prior relationship between the applicant and G.S., the behaviour of the applicant during the intercourse and her behaviour after the incident.

In view of the above, the Court accepts that the applicant had raised her grievances sufficiently before the relevant national authorities and, in particular, her requests that the case be prosecuted for rape. The Court reaches this conclusion having particular regard to the requirements for a child-friendly justice in cases of sexual assault. While the proceedings as a whole, as noted above, should have complied with the requirement to conduct an effective investigation and prosecution into such complaints, neither the prosecution nor the court analysed the circumstances of the case from a child-sensitive stand-point. Due regard should be had, in such cases, to the principle of the best interest of the child and ensuring that an effective investigation and prosecution is carried out, without aggravating the trauma experienced by the child. In these particular circumstances, the Court accepts that the present complaint cannot be rejected on account of the applicant’s failure to pursue the procedural route under domestic law for joining the domestic proceedings, namely as a private prosecutor. Thus, the Government’s argument concerning non-exhaustion of domestic remedies should be dismissed.

In view of all of the above, the Court finds that, like in the similar case of M.G.C., cited above, § 73, the failure to take into account the surrounding specific circumstances of the present case by the prosecutorial and judicial authorities alike was the result of their having attached little or no weight to the particular vulnerability of the applicant as a very young person, and the special psychological factors involved in cases concerning rape. Thus, the relevant national authorities did not carry out the careful scrutiny required for them to properly discharge their positive obligations under the Convention.

The foregoing considerations are sufficient to enable the Court to conclude, without expressing a position on the guilt of the perpetrator, that there has accordingly been a procedural violation of Articles 3 and 8 of the Convention.

 


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