CASE OF M.G.C. v. ROMANIA

FOURTH SECTION

CASE OF M.G.C. v. ROMANIA

(Application no. 61495/11)

JUDGMENT

STRASBOURG

15 March 2016

FINAL

15/06/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of M.G.C. v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Nona Tsotsoria,
Egidijus Kūris,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 2 February 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 61495/11) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms M. G. C. (“the applicant”), on 21 September 2011.

2. The applicant was represented by Ms A. Laza, a lawyer practising in Deva. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that the Romanian authorities had breached their positive obligation to protect her from inhuman and degrading treatment and to protect her right to respect for her private life as guaranteed by Articles 3 and 8 of the Convention.

4. On 11 July 2013 the application was communicated to the Government and it was decided to grant the applicant anonymity under Rule 47 § 4 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1997 and lives in Deva.

A. Alleged sexual abuse of the applicant

6. At the time of the events, the eleven-year-old applicant was living with her family in a small village and often used to go to play with two girls from a neighbouring family at their house. The girls, F.C.B. and M.S.B., were about the same age as the applicant. The neighbours’ family (the B. family) had ten children and were also accommodating a relative of theirs, J.V., a fifty-two-year-old man who was unemployed and lived in the family’s vacant cattle stable.

7. According to the statement made by the applicant later to the police, in August 2008 and then again in December 2008, J.V. had dragged her by force while she was playing with her girlfriends at the neighbours’ house, had taken her to an empty room in the house or into the barn and had raped her while holding her down and keeping his hand over her mouth in order to prevent her from screaming. The applicant also stated to the police that between August 2008 and February 2009 she had been raped in similar circumstances by four of the neighbours’ sons and their friend G.I.

8. On 10 March 2009 the applicant’s mother noticed that the applicant did not get her monthly period and had a talk with her. She told her mother that she had been sexually abused by J.V. and the other boys. She said that she had been ashamed to talk about what happened and also afraid to tell her parents sooner because J.V. had threatened that he would beat her if she told anyone.

9. As a result of the sexual abuse, the applicant became pregnant and, with her parents’ approval, she later underwent a surgical termination of the pregnancy.

B. Criminal investigation and trial

10. On 10 March 2009 the applicant’s parents lodged a complaint against the alleged perpetrators with the local police and an investigation was started against J.V. and the four brothers F.B., A.B., G.B. and P.B. No proceedings were opened with respect to G.I., who was under fourteen and hence not criminally liable.

11. On the same day the five suspects were called into the police station for questioning. F.B. declared that on 22 December 2008, when the applicant was visiting her friends, he had asked her to have sex with him and she had accepted. P.B. declared that it had been J.V. who insistently told him to have sex with the applicant.

12. On 11 March 2009 a forensic report found that no traces of violence had been detected on the applicant’s body.

13. During the investigation J.V. declared that the applicant had provoked him to have sex with her as she was always scantily dressed. He further stated that it was she who had come to him and had asked him to have sex with her the first time, in August or September 2008. He alleged that the applicant had told him that she had had sex before with the boys from the B. family.

14. The applicant declared before the police that she had been forced by J.V. to have sex with him on several occasions, alleging that he had threatened that he would beat her if she told anyone. The other boys had also forced her to have sex with them, telling her that it was J.V. who had told them what to do.

15. On 22 April 2009 the Deva Police sent the file to the Prosecutor’s Office of the Hunedoara County Court in order to pursue the investigation into rape. The judiciary police officer making the request held that, even if the perpetrators’ statements were to be accepted as truthful, the victim’s age (eleven at the time of the first sexual act) precluded the existence of legally valid consent as she could not have freely expressed her will.

16. On 7 July 2009, at the request of the Hunedoara County Police, the Hunedoara County Forensic Institute issued a forensic psychiatric report on the applicant. The report held that the applicant was suffering from post-traumatic stress and stated that:

“Concerning the specific circumstances in which the criminal acts were committed, the minor speaks with shame about what happened. She has a vivid memory of the events. ... She says that she did not tell anyone about the incidents sooner because she feared for her safety and the safety of her family members.”

The report concluded that the applicant had difficulties in foreseeing the consequences of her actions and had insufficient discernment due to her age.

17. F.B. declared before the prosecutor that he had had sex with the applicant once on 22 December 2008. A.B. declared that he had had sex with the applicant in the autumn of 2008. G.B. declared that he had had sex with the applicant once in April and then again in October 2008. P.B. stated that he had had sex with the applicant on one occasion in the autumn of 2008. The applicant had asked him to have sex with her, and when he had refused - because he had never done this before - it was she who got undressed and climbed onto him. He further mentioned that he had used a condom that he had in his pocket. They all declared that it was the applicant who had taken the initiative each time and that it had happened because she displayed a provocative attitude, being scantily dressed most of the time. Each brother stated that the applicant had told him that she had had sex before, either with one of the other brothers or with J.V.

18. When questioned during the investigation, F.C.B. and M.S.B. declared that the applicant had told them she had had an intimate relationship with J.V. and that they had never seen him taking the applicant by force while they were playing. They also stated that the applicant often came to their house scantily dressed and that their brothers C.B. and A.B. had told them that the applicant had provoked them and “jumped onto them”.

19. On 10 December 2009 the Prosecutor’s Office of the Hunedoara County Court issued an indictment decision with respect to J.V. for the crime of sexual intercourse with a minor on repeated occasions. F.B., A.B., G.B. and P.B. were given administrative fines for the same crime. From the statements of the perpetrators and the two sisters, the prosecutor held as proved the fact that the applicant had gone to the neighbours’ house scantily dressed and had had a sexual relationship with J.V. The prosecutor therefore concluded that from the documents in the file it was not proved beyond doubt that the applicant had not given her consent to the sexual acts.

20. The applicant’s complaint against the prosecutor’s decision concerning the four brothers and G.I. was rejected by the superior prosecutor and subsequently by the courts.

21. On 20 April 2010 J.V. was found guilty by the Deva District Court of sexual intercourse with a minor and was sentenced to three years’ imprisonment. The applicant was awarded 10,000 Romanian lei (ROL) by way of compensation in respect of non-pecuniary damage (approximately 2,000 euros (EUR)).

22. During the proceedings the applicant’s representative requested the perpetrator’s conviction for rape. She submitted to the file a copy of a judgment issued on 10 November 2009 by the Bacău Court of Appeal which held that a girl aged ten years and eight months could not understand what a sexual act meant sufficiently well to give her consent to it.

23. The applicant declared before the court that J.V. had forced her to have sex with him and had threatened to beat her if she told anyone. She was afraid of him because he could become violent when he was drunk. The other boys had also threatened to beat her and once A.B. had threatened her with a knife.

24. In reaching its decision, after also hearing statements from J.V. and the witnesses F.C.B. and M.S.B., the Deva District Court firstly observed that the forensic certificate stated that no signs of violence had been detected on the victim’s body. The court further noted that it was apparent from the statements of J.V. and the other perpetrators who had not been indicted by the prosecutor that the applicant had always taken the initiative for the sexual acts and she had been in the habit of provoking both J.V. and the other boys to have sex with her. As regards the content of the above-mentioned statements, the court considered “relevant” the fact that the applicant was scantily dressed and that even after she had allegedly been sexually abused she went on playing with her girlfriends. The court considered that:

“If sexual intercourse had taken place by force or by taking advantage of the victim’s lack of capacity to defend herself or to express her will, it is certain that [she] would not have continued her previous practice [going to play with the neighbours’ daughters]”.

25. The applicant, represented by her lawyer, appealed against the judgment of the Deva District Court, requesting that J.V. be convicted of rape and that the amount of compensation in respect of non-pecuniary damage be increased to ROL 50,000. The applicant’s representative submitted that the decision of the first instance court had not been impartial since it had been based only on the statement of the accused, together with statements by the other perpetrators and two witnesses – all related to the accused. Furthermore, since the minimum age of consent to a sexual act was set by law at fifteen, the applicant ‒ who was only eleven at the time of the incidents ‒ could not have expressed valid consent and the sexual abuse committed against her could therefore only be classified as rape. In addition, the applicant’s representative complained that the forensic psychiatric report of 7 July 2009, which declared that the victim lacked capacity to express valid consent and was suffering from post-traumatic stress, had not been taken into consideration by the first instance court.

26. The Hunedoara County Court decided to allow the applicant’s appeal, holding that:

“According to the provisions of Article 197 of the Criminal Code, the crime of rape is ‘Sexual intercourse of any kind with a person ... taking advantage of the [person’s] lack of capacity to defend herself or to express her will [original emphasis]...’.

At the time when the accused had sexual intercourse with the victim, she was eleven years old. In Romanian law, there is an absolute presumption that any person below fourteen completely lacks capacity. Therefore, before the age of fourteen, the minor cannot express a valid consent, being in a position of inability to express [his/her] will in a valid manner...”

27. Taking these arguments into account, on 4 November 2010 the Hunedoara County Court convicted J.V. of rape and sentenced him to four years’ imprisonment. The court applied a sentence below the minimum provided for by law for the crime of rape against a person under fifteen, finding mitigating circumstances due to the defendant’s good behaviour prior to the commission of the crime on trial. The court also held that it was not necessary to increase the amount of compensation in respect of non-pecuniary damage awarded by the first instance court.

28. The applicant’s representative submitted an appeal on points of law (recurs) against the judgment of 4 November 2010, requesting an increase in the amount of compensation for non-pecuniary damage and that a more severe sentence be imposed on the defendant. J.V. also contested the judgment, requesting a conviction for the crime to which he had confessed, namely sexual intercourse with a minor.

29. On 21 March 2011 the Alba Iulia Court of Appeal allowed the appeal on points of law submitted by J.V. and upheld with final effect the judgment of the Deva District Court of 20 April 2010. The Alba Iulia Court of Appeal based its verdict on the statements given by J.V., F.C.B. and M.S.B. as well as the account of the events given by the other perpetrators. Based on these testimonies and the fact that the victim had not told her parents about the alleged abuse, the court drew the conclusion that the instances of sexual intercourse had always been initiated by the applicant and dismissed the theory that the victim might have lacked capacity to express her will. The findings of the forensic psychiatric report of 7 July 2009 were not mentioned or discussed in any way by the court.

The court of appeal explained as follows:

“The court considers that the crime of rape is committed by constraint - physical or moral - or by taking advantage of the victim’s lack of capacity to express his/her will, more specifically rape is a sexual intercourse committed without consent. On the other hand, the crime of sexual intercourse with a minor, as provided by Article 198 of the Criminal Code, means engaging in a sexual intercourse with a minor under 15, but with the minor’s consent. ...

“The presumption of lack of capacity applies only to minors who are under fourteen and have committed a crime, but with respect to the crime provided by Article 198 of the Criminal Code, the minor [the applicant] is the victim and not the perpetrator.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic legal provisions

30. The relevant articles of the Criminal Code in force at the time of the events read as follows:

Article 99

The limits of criminal responsibility

“(1) A minor who is less than14 years old does not have criminal responsibility.”

Article 197

Rape

“(1) Sexual intercourse of any kind, with a person of a different sex or of the same sex, by constraint or by taking advantage of the victim’s lack of capacity to express [his/her] will, is punishable with imprisonment from 3 to 10 years and the withdrawal of certain rights. ...

(3) The punishment is imprisonment from 10 to 25 years and the withdrawal of certain rights if the victim is under 15, ... ”

Article 198

Sexual intercourse with a minor

“(1) Sexual intercourse of any kind, with a person of a different sex or of the same sex, who is under 15, is punishable with imprisonment from 3 to 10 years and the withdrawal of certain rights.”

31. The relevant provisions of Decree No. 31/1954 on natural and legal persons read as follows:

Article 5

“(3) The capacity of exercise is the capacity of a natural person to exercise his/her rights and to undertake obligations...”

Article 11

“(1) The following persons do not have the capacity of exercise:

a) the minor under 14;”

B. Examples of domestic case-law submitted by the Government

32. The Government submitted a large number of judgments in order to illustrate the practice of the domestic courts in the matter of the crime of sexual intercourse with a minor, as set forth below:

33. Twelve domestic court judgments (adopted between 2009 and 2013) follow the approach that the capacity to express valid consent on the part of a victim of sexual abuse who is a minor was to be determined in accordance with the particular circumstances of each case. In the majority of these cases, victims aged between eleven and fourteen years old were considered to have agreed to sexual acts with older men – including anal and oral sex – based on elements such as the fact that they had not told their parents, they had not screamed for help or that they had agreed to accompany the perpetrators to various places where the acts had taken place. In some of the cases discrepancies between the statements given by the victims at various stages of the proceedings were also considered to constitute an element proving their consent. In the two most recent judgments, the courts ordered psychiatric expert reports on responses to specific questions formulated in advance by the judges in order to assess the victim’s capacity to express valid consent to the sexual act.

34. In four domestic court judgments (adopted in 2012 and 2013) the courts stressed the fact that victims of six, eight, nine and twelve years old could not express valid consent to sexual acts due to their young age, and convicted the perpetrators of rape. For example, in the case of a twelve-year-old girl raped by her uncle, the Olt County Court stated “Even assuming that the victim ... agreed to the sexual acts, her consent was not valid because of her young age ...”.

35. The remaining sixteen judgments submitted by the Government concerned convictions of rape in cases where the perpetrators had used physical violence (in ten cases victims were hit or knives were held to their throat) or threatened the victims (in six cases there were threats that they would be killed or that their parents would be told that the victims allegedly agreed to have sex with the perpetrators). In four of these cases the victims’ young age (between eleven and fourteen years old) was an additional element taken into consideration by the judges in determining the lack of valid consent to the sexual acts. In only five cases had the courts requested forensic or neuro-psychiatric evaluations of the victims.

C. Examples of domestic case-law submitted by the applicant

36. The applicant submitted three domestic court judgments issued in cases involving victims between ten and fourteen years old where the perpetrators had been convicted of rape. In these cases the courts based their decisions on expert reports such as psychological evaluations and reports by the social services, and on statements from the individuals involved and from witnesses. In one judgment adopted by the Târgu Mureş Court of Appeal it was held that “In addition, it must not be overlooked that the [victim] was twelve, an age at which she could not objectively understand what was about to happen to her and, under these conditions, it cannot be held that she consented to have sex with the defendant...”.

D. Reports by non-governmental organisations

37. In May 2015 the Romanian non-governmental organisation Center for Legal Resources (Centrul de Resurse Juridice) issued a report on the situation of children in the Romanian justice system (“Justice in the interest of the child – perspectives and experiences of specialists from Romania, 2012”). The report was drawn up following research and interviews conducted between 2013 and 2014 with people working within the justice system and concluded that children’s rights were not adequately protected within the justice system in Romania. The report stated that children were often re-victimised and confronted face-to-face with the perpetrators, were not offered any psychological counselling, and their vulnerability and individual needs were not taken into consideration. Cases of humiliation of girl victims and offensive attitudes towards them during hearings were also reported. In this respect the report quoted: “Numerous specialists from the social services reported cases in which adolescent victims of trafficking or sexual violence had been treated in a humiliating and aggressive manner by the prosecutors, the employees of the forensic institutes, or in court”. Later in the report it was suggested that some of the judges sitting on the panels in the courts for minors had not necessarily had special training on how to deal with cases involving children.

The report also underlined the following:

“The majority of those interviewed complained that the legal provisions are not strong enough, leaving the protection of the child to the discretion of the judge and failing to provide for compulsory procedures to be followed. The research produced worrying evidence that not even the existing legal provisions were being fully respected. Hence, situations were described when the child victim or witness was asked to reply to questions ‒ sometimes humiliating ones ‒ addressed directly to them by the defendant’s lawyer or even by the defendant himself, even though such questions should always be addressed through the intermediary of the judge. It is not surprising that in such circumstances some children change their statements or even refuse to continue to take part in the proceedings.”

III. RELEVANT INTERNATIONAL MATERIALS

A. Council of Europe Sources

38. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse obliges its signatories to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children. The Convention entered into force on 1 July 2010. Romania ratified the Convention on 28 June 2013. The relevant parts of Chapter VI, “Substantive criminal law” read:

Article 18 – Sexual abuse

“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:

a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;

b. engaging in sexual activities with a child where: - use is made of coercion, force or threats; or - abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or - abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.

2. For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child.

3. The provisions of paragraph 1.a are not intended to govern consensual sexual activities between minors.”

39. The Explanatory Report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, of which the Committee of Ministers of the Council of Europe took note on 12 July 2007, provides as follows in its relevant parts:

“3. ... It is also recognised that children usually experience extreme difficulties in telling anyone about being sexually abused because very often they are violated by a person in their close social or family circle or because they are threatened. ...

7. Compliance with the CRC [UN Convention on the Rights of the Child] and its Protocols is monitored by the Committee on the Rights of the Child, which has come to the conclusion that children in Europe are not sufficiently protected against sexual exploitation and abuse. In particular the Committee underlines the lack of exhaustive national criminal legislation in this field in the State Parties, ...”

40. On 5 May 2011 the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014. The Convention was signed by Romania on 27 June 2014, but has not yet been ratified. The Convention provides as follows in its relevant parts:

Article 36 – Sexual violence, including rape

“1 Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:

a engaging in non‐consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;

b engaging in other non‐consensual acts of a sexual nature with a person;

c causing another person to engage in non-consensual acts of a sexual nature with a third person.

2 Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances. ...”

Article 49 – General obligations

“1 Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.

2 Parties shall take the necessary legislative or other measures, in conformity with the fundamental principles of human rights and having regard to the gendered understanding of violence, to ensure the effective investigation and prosecution of offences established in accordance with this Convention.”

Article 54 – Investigations and evidence

“Parties shall take the necessary legislative or other measures to ensure that, in any civil or criminal proceedings, evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary.”

Article 56 – Measures of protection

“2 A child victim and child witness of violence against women and domestic violence shall be afforded, where appropriate, special protection measures taking into account the best interests of the child.”

41. The Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted on 17 November 2010 provide the following:

“1. Member States should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them....

17. A common assessment framework should be established for professionals working with or for children (such as lawyers, psychologists, physicians, police, immigration officials, social workers and mediators) in proceedings or interventions that involve or affect children to provide any necessary support to those taking decisions, enabling them to best serve children’s interests in a given case.”

42. Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe on the protection of women against violence recommends that member States adopt and implement, in the manner most appropriate to each country’s national circumstances, a series of measures to combat violence against women. Paragraph 35 of the appendix to the recommendation states that, in the field of criminal law, member States should, inter alia:

“– penalise any sexual act committed against non-consenting persons, even if they do not show signs of resistance; ...

– penalise any abuse of the position of a perpetrator, and in particular of an adult vis-à-vis a child.”

B. Other European Sources

43. Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography provides as follows in its preamble:

“(6) Serious criminal offences such as the sexual exploitation of children and child pornography require a comprehensive approach covering the prosecution of offenders, the protection of child victims, and prevention of the phenomenon. The child’s best interests must be a primary consideration when carrying out any measures to combat these offences in accordance with the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child.”

The Directive also provides in Article 20 paragraph 3 letter c) that interviews with the child victim of sexual abuse are to be carried out by or through professionals trained for this purpose.

44. A detailed description of the legal provisions and practice in certain European countries concerning the notion of consent in the context of the crime of rape can be found in M.C. v. Bulgaria (no. 39272/98,
§§ 88-100, 4 March 2004).

C. United Nations Sources

45. The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. The Convention was ratified by Romania on 28 September 1990. The relevant Articles read:

Article 19

“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”

Article 34

“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;...”

46. The United Nations Committee on the Rights of the Child in its General comment No. 13 (2011) on the right of the child to freedom from all forms of violence recommends that:

“Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights-based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. (...) Towards this end, all parties are obliged to invite and give due weight to the child’s views.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION

47. Relying on Articles 3, 8 and 6 § 1 of the Convention, the applicant complained that the Romanian authorities had breached their positive obligation to protect her from inhuman and degrading treatment and to protect her right to respect for her private life.

48. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by an applicant. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Guerra and Others v. Italy [GC], 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). Therefore, having regard to the nature and the substance of the applicant’s complaints in this particular case, the Court finds that they fall to be examined primarily under Articles 3 and 8 of the Convention (see M.C. v. Bulgaria, cited above, § 148), which read as follows in their relevant parts:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1. Everyone has the right to respect for his private ... life ...”

A. Admissibility

49. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

50. The applicant alleged that Romanian law and practice did not provide effective protection of children against rape and sexual abuse. In particular, since the crime of rape required a lack of consent on the victim’s part, the applicant complained that, in the absence of any traces of violence on her body and because of the authorities’ refusal to take into consideration that her attitude regarding the incidents was related to her young age, it had been impossible for her to prove her lack of consent. The applicant maintained that the existence of legislation ‒ open to interpretation ‒ which permitted consideration of the possibility that an eleven-year-old girl might have expressed valid consent to a sexual act with a man forty-one years older than her amounted to a failure of the State to abide by its obligation to undertake measures to protect her integrity and private life. She also stated that, by setting at fifteen the age of consent for sexual intercourse and at the same time limiting the prosecution of rape to cases where the victims had offered resistance, the authorities had left children insufficiently protected against rape.

51. The applicant further alleged that the investigation conducted by the authorities into her case had lacked effectiveness, since they had based their decisions solely on the statements of the alleged perpetrators and members of their family and had disregarded essential evidence such as her psychiatric examination. No consideration had been given to important factors such as the applicant’s young age, her vulnerability, or the special psychological aspects of rape committed against a minor. The applicant emphasised that the domestic courts had attributed greater importance to the forensic medical certificate stating that the applicant had had no signs of violence on her body and had failed to even mention the findings of the psychiatric examination which had concluded that she had showed signs of post-traumatic stress and did not have the capacity to foresee the consequences of her acts.

(b) The Government

52. The Government contended that the investigation had been thorough and effective. All possible steps had been taken to gather the necessary evidence and to establish the facts, and in the absence of “direct” proof of rape, the national authorities had taken into consideration all the circumstances of the case. The Government further alleged that, from the examples of domestic practice submitted, certain general principles might be derived. First, when the victim is so young that it is impossible to establish his/her consent to the sexual act, the act is to be classified as rape – for example in cases where the victims are between six and nine years old. Secondly, when the victim is not so young for the act to be automatically classified as rape, but is not yet fifteen and gives her/his consent to the sexual act, the law provides that her/his will is not valid because of the victim’s young age and classifies the act as the crime of sexual intercourse with a minor. The domestic courts have made a distinction between the two crimes, holding that the victim’s failure to defend herself/himself or to express her/his will must be established on a case-by-case basis and it is possible that a fourteen-year-old girl may find herself unable to express her consent, while a much younger victim may have the capacity to defend herself and express her will.

53. The Government concluded that, even if domestic law did not specifically set an age limit for a minor’s capacity to express valid consent to a sexual act, such a limit was established through the clear practice of the domestic courts. Moreover, even at international level there were no binding instruments setting such an age limit.

2. The Court’s assessment

(a) General principles

54. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V; M. and Others v. Italy and Bulgaria, no. 40020/03, § 99, 31 July 2012; and O’Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts)).

55. Furthermore, positive obligations on the State are also inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State’s margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see C.A.S. and C.S. v. Romania, no. 26692/05, § 71, 20 March 2012).

56. In respect of children who are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include not only reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge but also effective deterrence against such serious breaches of personal integrity (see M. P. and Others v. Bulgaria, no. 22457/08, § 108, 15 November 2011). Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see C.A.S. and C.S. v. Romania, cited above, § 82).

57. Regarding, more specifically, serious acts such as rape and the sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls to the member States to ensure that efficient criminal law provisions are in place (see, M.C. v. Bulgaria, cited above, § 153). This obligation also stems from a number of international instruments, such as Chapter VI, “Substantive criminal law”, of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse or Articles 19 and 34 of the United Nations Convention on the Rights of the Child (see paragraphs 38 and 45 above).

58. Concerning such serious acts, the State’s positive obligation under Articles 3 and 8 to safeguard the individual’s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, among other authorities, C.A.S. and C.S. v. Romania, cited above § 72; M.P. and Others v. Bulgaria, cited above, §§ 109‑10; and M.C. v. Bulgaria, cited above, § 152) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, C.A.S. and C.S. v. Romania, cited above § 72), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007, and Szula v. the United Kingdom (dec.), no. 18727/06, 4 January 2007).

59. On the basis of the above principles, the Court has previously found that States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions that effectively punish rape and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria, cited above, § 153). In addition, in accordance with contemporary standards and trends in the area, the member States’ positive obligations under Articles 3 and 8 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 (ibid., § 166).

(b) Application of the above-mentioned principles to the present case

60. In the light of the above, the Court’s task is to examine whether or not the practice of the domestic courts and the application of the impugned legislation in the case at hand, combined with the alleged shortcomings in the investigation, had such significant flaws as to amount to a breach of the respondent State’s positive obligations under Articles 3 and 8 of the Convention (see M.C. v. Bulgaria, cited above, § 167).

61. The issue before the Court is limited to the above. The Court is not concerned with allegations of errors or isolated omissions in the investigation; it cannot replace the domestic authorities in the assessment of the facts of the case, nor can it decide on the alleged perpetrator’s criminal responsibility (ibid., §168).

62. The applicant alleged that the authorities’ attitude in her case was rooted in defective legislation and a predominant practice of not making a context-sensitive assessment of the evidence, more specifically failing to take into account age-specific behaviours, and generally prosecuting perpetrators for rape against minors only where there is evidence of physical resistance.

63. The Court observes that Article 197 of the Romanian Criminal Code does not mention any requirement of physical resistance by the victim and defines rape in a manner which does not differ significantly from the wording found in statutes of other member States as the Court described them in M.C. v. Bulgaria (cited above, §§ 74 and 88 – 100).

64. What is decisive, therefore, is the meaning given by the investigative authorities and the courts to words such as “constraint” and “the victim’s lack of capacity to express his/her will” in cases where the victim is under fifteen, the legal age of consent to sexual intercourse.

65. The Court notes from the examples of case-law submitted by the parties in the present case that the Romanian courts were united in the opinion that a minor victim’s consent to sexual intercourse must be determined on a case-by-case basis. However, the issue lies with the courts’ practice in analysing the existence of consent and their difficulties to adopt a child-sensitive approach in the assessment of the facts of the cases before them. More specifically, the majority of the convictions for rape were adopted in cases involving violence (see paragraph 35 above). In a significant number of cases, the victim’s consent to the sexual acts was inferred from facts which were more akin to child-specific reactions to trauma, such as the fact that the victims did not tell their parents or did not scream for help (see paragraph 33 above). In less than half of the examples had the judges ordered psychiatric or psychological examinations of the victims in order to verify the existence of their capacity to give valid consent to the sexual acts (see paragraphs 33, 35 and 36 above). In very few of the cases submitted as examples ‒ four, to be precise ‒ did the courts consider that victims could not have expressed valid consent due to their very young age, ranging from six to twelve years old (see paragraph 34 above). In view of the above, it cannot be concluded that a settled and consistent practice had been developed by the national courts in order to clearly differentiate between cases of rape and those of sexual intercourse with a minor.

66. Turning to the particular facts of the applicant’s case, the Court notes that the Romanian authorities were confronted with two conflicting versions of the events and little direct evidence. The Court does not underestimate the efforts made by the investigators and the prosecutors in their work on the case.

67. After the primary phase of the investigation, the police forwarded the case to the prosecutor’s office for continued investigations into rape. A few months later, the conclusions of a psychiatric evaluation of the applicant ordered by the police were made available to the prosecutor. The report found that the applicant had difficulties in foreseeing the consequences of her acts and, due to her young age, had insufficient discernment. However, based on the statements of the accused, the other four perpetrators and two witnesses who were about the same age as the applicant and were, in addition, related to all the perpetrators, it was assumed that the applicant had given her consent to the sexual acts and J.V. was indicted only for the crime of sexual intercourse with a minor.

68. The Court further observes that the domestic courts, more specifically the court of first instance and the court of final appeal, endorsed the reasoning put forward by the prosecutor without analysing the conclusions of the psychiatric report ordered during the preliminary investigation. In addition, without explaining why, the domestic courts chose to attach more weight to the statements given by J.V., F.B., P.B. and A.B. and by the two witnesses from their family, thereby concluding that it was the applicant who had provoked J.V. to have sex with her. The other alleged perpetrators were never heard as witnesses before the courts and hence the applicant’s allegations that they had threatened to beat her and also threatened her with a knife, or that they might have had an interest in testifying for J.V. had never been examined (see paragraphs 23 and 25 above).

69. Furthermore, no consideration was given by the courts to the difference in age between the applicant and J.V. or the obvious physical difference between them. The courts also failed to examine whether any reasons existed for the applicant to falsely accuse J.V. of rape.

70. In addition, the domestic courts failed to demonstrate a child-sensitive approach in analysing the facts of the case and held against the applicant facts that were, in reality, consistent with a child’s possible reaction to a stressful event, such as not telling her parents. This approach was aggravated by the fact that no psychological evaluation was ever ordered by the domestic courts for the purposes of obtaining a specialist analysis of the applicant’s reactions from the point of view of her age and to determine the existence of possible psychological consequences of the alleged abuse against her.

71. The Court thus considers that the authorities failed to explore the available possibilities for establishing all the surrounding circumstances and did not assess sufficiently the credibility of the witnesses who had themselves been accused in the case or were related to those accused.

72. The Court considers that, while in practice it may sometimes be difficult to prove lack of consent in the absence of “direct” proof of rape, such as traces of violence or direct witnesses, the authorities must nevertheless explore all the facts and decide on the basis of an assessment of all the surrounding circumstances. The investigation and its conclusions must be centred on the issue of non-consent (see M.C. v. Bulgaria, cited above, § 181).

73. That was not done in the applicant’s case. Like in the similar case of M.C. v. Bulgaria, cited above, the Court finds in the current case too that the authorities’ failure to investigate sufficiently the surrounding circumstances was the result of their having attached little or no weight at all to the particular vulnerability of young persons and the special psychological factors involved in cases concerning the rape of minors (ibid. § 183).

74. To summarise, without expressing an opinion on the guilt of J.V., the Court finds that the investigation of the applicant’s case and, in particular, the approach taken by the national courts, in the context of a lack of a consistent national practice in the field, fell short of the requirements inherent in the States’ positive obligations to apply effectively a criminal-law system punishing all forms of rape and sexual abuse against children.

75. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the respondent State’s positive obligations under both Articles 3 and 8 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

77. The applicant claimed 50,000 euros (EUR) in respect of
non-pecuniary damage. Documents such as a school report and an evaluation of the applicant’s emotional state by the child protection services were submitted in support of the allegation that the abuse and the subsequent investigation caused the applicant emotional suffering and negatively affected her school performance. The applicant also mentioned that her suffering had been further aggravated by the fact that she had become pregnant as a result of the abuse.

78. The Government submitted that the amount claimed was excessive.

79. The Court considers that the applicant must have suffered distress and psychological trauma resulting at least partly from the shortcomings in the authorities’ approach in the present case. Making an assessment on an equitable basis, the Court awards her EUR 9,000 in respect of non-pecuniary damage.

B. Costs and expenses

80. The applicant also claimed EUR 790 for the costs and expenses incurred before the Court. More specifically, EUR 630 (2,860 Romanian lei (ROL)) in lawyer’s fee and EUR 160 (720 ROL) in translation fees. She submitted invoices in support of these amounts and a contract signed with her lawyer for legal representation before the Court.

81. The Government stated that the applicant had failed to submit a detailed hourly time sheet in order to justify her lawyer’s fee.

82. According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96,
§ 27, 28 May 2002). In the circumstances of the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the lawyer’s fee is not excessive. Accordingly, it awards the sum of EUR 790 in respect of costs and expenses.

C. Default interest

83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of the respondent State’s positive obligations under both Articles 3 and 8 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 790 (seven hundred and ninety euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosAndrás Sajó
RegistrarPresident

 

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