THIRD SECTION
Application no. 61495/11
M.G.C.
against Romania
lodged on 21 September 2011
STATEMENT OF FACTS
1. The applicant, Ms M.G.C., is a Romanian national, who was born in 1997 and lives in Deva. She is represented before the Court by Ms A. Laza, a lawyer practising in Deva.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s alleged sexual abuse
3. At the time of the events, the applicant, eleven years old, lived with her family in a small village and she often used to go play with the neighbours’ daughters at their house. The neighbours’ family had ten children and were hosting in their house a relative of theirs, J.V., a fifty-two years old man who was unemployed and lived in a nearby former cattle stable.
4. According to the applicant’s statement made later to the police, first time in August 2008 and then in December 2008, J.V. dragged her by force when she was playing with her girlfriends C.F.B. and M.S.B. at the neighbours’ house, took her in an empty room of the house or in the barn and raped her while holding her down and keeping his hand on her mouth in order to prevent her from screaming. The applicant also stated that on three separate occasions between August 2008 and February 2009 she was raped in similar circumstances by two of the neighbours’ boys, C.B. and A.B. and their friend G.I.
5. On 10 March 2009 the applicant told her mother that she did not get her monthly period and that she had been sexually abused by J.V. and the other three boys. She mentioned that she was ashamed to talk about what happened and also afraid to tell her parents because she was threatened by J.V. that he would beat her if she would tell anyone.
6. As a result of the sexual abuse, the applicant got pregnant and, following the decision of her parents, she was later subjected to a surgical interruption of pregnancy.
2. Criminal investigation and trial
7. On 10 March 2009 the applicant’s parents filed a complaint against the alleged perpetrators with the local police station.
8. On 11 March 2009 a forensic report concluded that the applicant did not present signs of violence.
9. On 7 July 2009 Hunedoara County Forensic Office issued a forensic psychiatric report with respect to the applicant at the request of the Hunedoara County Police. The report held that the applicant presented signs of post-traumatic stress and mentioned that:
“Concerning the concrete circumstances in which the criminal acts were committed, the minor speaks with shame about what happened. Live memory of what happened. ... She says that she did not tell about the incidents sooner because she was afraid, because her safety and the safety of her family members were threatened.”
The report further concluded that the applicant had no capacity to foresee the consequences of her acts – a state which is compatible to her young age.
10. During the investigation J.V. declared that the applicant provoked him to have sex as she was always summarily dressed.
11. C.B., A.B. and G.I. declared before the prosecutor that it was J.V. who told them what to do in order to have sex with the applicant. They also declared that it was the applicant who provoked them to have sex with her because when she would come over to play with her girlfriends she was summarily dressed.
12. The applicant’s playing partners, F.C.B. and M.S.B., who were the sisters of C.B. and A.B. and were around the same age as the applicant, declared during the investigation that the applicant told them she had a relationship with J.V.
13. Based on the forensic report of 11 March 2009 and the statements of the applicant, of F.C.B. and M.S.B. and the alleged perpetrators, 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 in continuing form. C.B. and A.B. were sanctioned with administrative fines while G.I. was not charged because he was under fourteen at the time of the incident complained about. The applicant’s complaint against the prosecutor’s decision concerning the two boys and G.I. was rejected by the superior prosecutor at an unknown date and subsequently by the courts.
14. On 20 April 2010 J.V. was convicted by the Deva District Court for the crime of sexual intercourse with a minor and sentenced to three years imprisonment. The applicant was awarded 10.000 lei moral damages. In reaching this decision the court firstly held that according to the forensic certificate no signs of violence could be detected on the body of the victim. The court further noted that from the statements of J.V. and the other perpetrators who had not been indicted by the prosecutor it resulted that the applicant had always the initiative for the sexual acts and she was provoking both J.V. and the other boys to have sex with her. The court also held that these statements were corroborated by the witnesses F.C.B. and M.S.B. The Deva District Court also based its decision on the opinion that:
“If the sexual intercourse had taken place by force or taking advantage of the victim’s lack of capacity to defend herself or to express her will, it is sure that [she] would not have continued her previous habits [to go and play with the neighbours’ daughters]”
15. The applicant, represented by her lawyer, appealed against the judgment of the Deva District Court requesting that J.V. should be convicted for rape and the amount of moral damages should be lifted to 50.000 lei. The applicant’s representative submitted that the decision of the first instance court was not impartial since it was based only on the statements of the perpetrators and the accused as well as the statements of two members of their family. Furthermore, since the minimum age of consent to a sexual act is set by law at fifteen, the applicant, who was eleven at the time of the incidents, could not have expressed a valid consent and therefore the sexual abuse committed against her could only be qualified as rape. In addition, the applicant’s representative complained that the forensic medical report of 7 July 2009, which proved that the victim lacked capacity to express a valid consent and presented post traumatic stress, had not been taken into consideration by the first instance court.
16. 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...’.
In the period 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 lacks totally any capacity. Therefore, before the age of fourteen, the minor cannot express a valid consent, being in a state of failure to express [his/her] will in a valid manner...”
Taking these into account, on 4 November 2010 the appeal court convicted J.V. for rape and sentenced him to four years imprisonment. The Hunedoara County Court further stated that it was not necessary to increase the amount of moral damages awarded by the first instance court.
17. The applicant’s representative submitted an appeal on points of law against the decision of 4 November 2010 requesting the increase of the moral damages. J.V. also contested the decision requesting a conviction for the crime to which he admitted, namely of sexual intercourse with a minor.
18. On 21 March 2011 the Alba Iulia Court of Appeal admitted the appeal on points of law submitted by J.V. and upheld the 20 April 2010 decision of the Deva District Court. In reaching this decision, the Alba Iulia Court of Appeal analysed the statements of J.V., F.C.B. and M.S.B. as well as the statements of the other perpetrators. From these testimonies and from the fact that the victim did not tell her parents about the alleged abuse, the court drew the conclusion that the sexual intercourses were consumed always at the initiative of the applicant and excluded the thesis that the victim might lack capacity to express her will.
The court finally noted that:
“The presumption of lack of capacity applies only to minors who are below 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.”
B. Relevant domestic law and practice
19. The relevant articles of the Romanian Criminal Code in force at the time of the events read as follows:
Article 99
The limits of criminal responsibility
“(1) The minor who is not yet 14 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 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 not yet 15 years old,(...)”
Article 198(1)
Sexual intercourse with a minor
“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.”
20. The opinion that any sexual act with a person under a certain age should be considered as rape was expressed often by Romanian law professors and lawyers. For example, in an edition of the Romanian Criminal Code commented by law professors it is stated that, in order to establish whether the minor victim expressed a valid consent to a sexual act, the biological and psychological development of the person are of utmost relevance and therefore, the person’s capacity to express a valid consent must be evaluated on a case by case basis. In this respect the authors are quoting a decision of the Bucharest County Court no.169/1982 where it was held that the sexual act with a nine years old girl constitutes rape because it cannot be admitted that the victim could freely express her consent (Basarab Matei, Pasca Viorel, Criminal Code Commented, Special Part (II), Bucharest, Hamangia Edition, 2008, p. 288).
Similarly, in a criminal law guidebook published in 2007 it is stated that when the victim has a young age, a sexual act, even consensual, is considered as rape, because the victim does not have capacity to understand the consequences of what is happening and therefore cannot express a valid consent (Sergiu Bogdan, Criminal law, Special Part (1), Cluj, 2007, p. 153).
A criminal law guidebook published as far as 1998 acknowledges the lack of precision of the law on this subject and mentions that:
“In the absence of a more precise law, it was expressed the opinion that committing the act [sexual intercourse with a minor] against a person under twelve constitutes the crime of rape, the perpetrator taking advantage in such a case of the victim’s lack of capacity to defend herself or to express her will.”
However, the authors mention that this opinion was not adopted by the practitioners who believe that the victim’s lack of capacity to defend herself or to express her will should be determined case by case (Octavian Loghin, Tudorel Toader, Romanian Criminal Law, third edition, Bucharest, 1998, p. 185).
C. Relevant international law and practice
21. 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 the case of M.C. v. Bulgaria, no. 39272/98, §§ 88-100, 4 December 2003.
22. A report prepared by the Law Commission of the United Kingdom Home Office in February 2000 recognised that the existing offence provided by UK legislation covering consensual sexual activity with a child by means of a provision deeming children under sixteen incapable of giving consent does not truly address the child’s capacity to consent and recommended a change in legislation in order to consider as rape any sexual act with a minor under twelve (A Report to the Home Office Sex Offences Review, The UK Law Commission, 16 February 2000, p. 9).
23. Excerpts of the relevant provisions of the Council of Europe’s Committee of Ministers Recommendation on the protection of women against violence can also be found in the case of M.C. v. Bulgaria, cited above, § 101.
24. The Council of Europe Convention on preventing and combating violence against women and domestic violence provides that:
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.”
25. The UN 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.”
COMPLAINTS
Invoking Articles 3, 8 and 6 § 1 of the Convention, the applicant complains that the Romanian authorities breached their positive obligation to protect her from inhuman and degrading treatment and to protect her private life. She alleges that Romanian law and practice does not provide effective protection of children against rape and sexual abuse. In particular, since the crime of rape requires the lack of consent of the victim, the applicant complains that, in the absence of any marks 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 was impossible for her to prove her lack of consent.
The applicant maintains that the existence of legislation which permits to consider that an eleven-year-old girl may have expressed a valid consent to a sexual act with a man forty-two years older than her amounts to a failure of the State to abide by its obligation to undertake measures to protect her integrity and private life.
The applicant finally alleges that the national authorities based their decisions only on the statements of the alleged perpetrators and members of their family and overlooked essential evidence such as her psychiatric examination while awarding her a disproportionately low amount for moral damages.
QUESTIONS TO THE PARTIES
1. Does the case concern, as claimed by the applicant, a positive obligation arising under Article 3 and/or Article 8 of the Convention, to protect the applicant’s physical and/or moral integrity and her private life?
2. If so, have there been violations of Articles 3 and/or 8 of the Convention on account of the alleged ineffective investigation and the alleged domestic practice imposing an excessive burden to prove lack of consent for victims of rape under fifteen years old?
The Government are invited to submit a copy of the file concerning the criminal investigation and the trial before the domestic courts with respect to the applicant’s complaint of sexual abuse against all perpetrators.
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