THIRD SECTION
Application no. 33708/12
I.P.
against the Republic of Moldova
lodged on 21 May 2012
STATEMENT OF FACTS
The applicant, Ms I.P., is a Moldovan national, who was born in 1987 and lives in Chișinău. She is represented before the Court by Mr I. Dodon, a lawyer practising in Chişinău.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On the evening of 10 May 2010 the applicant was approached on the street by her former boyfriend O.P. and forced into his car. The applicant’s attempts to escape were countered by O.P.’s violent behaviour and threats. According to the applicant he punched, pulled her hair and threatened her every time she wanted to get out of the car.
At midnight the applicant and O.P. arrived at the latter’s house in a village near Chişinău. O.P. locked the applicant inside the house and left for approximately forty-five minutes. The applicant attempted to escape but was not able and there was no telephone in the house. After O.P.’s return he ordered the applicant to undress and to lie with him on the bed. As a result of the applicant’s refusal they clashed but O.P. broke her resistance by violently assaulting and threatening her after which he raped her. In the morning when the applicant attempted to leave O.P.’s house, he raped her again and only after that he called a taxi for her.
On 11 May 2010 the applicant lodged a criminal complaint against O.P. and undergone a forensic medical investigation. A medical report issued on the same date found multiple bruises on the applicant’s face and thoraces and traces of semen in her vagina.
On 14 May 2010 O.P. underwent a forensic medical investigation as a result of an order issued by a prosecutor. A medical report found scratches produced by nails on his neck. The medical report recorded that O.P. had not denied having had sexual intercourse with the applicant; however, he had insisted that both partners had consented. He had also explained that the injuries on their bodies had resulted from a fight.
In his statements to the prosecutor O.P. denied having had sexual intercourse with the applicant on 11 May 2010 and submitted that the last time they had sex was on 7 May 2010.
On 6 August 2010 the Chisinau Prosecutor’s Office refused to initiate criminal proceedings. When describing the facts of the case in its decision, the prosecutor relied on O.P.’s version of the facts according to which the applicant used to date and to engage in sexual contacts with him for one year before the events. On the evening of 10 May 2010 O.P. came to her house but did not find her at home. He waited for the applicant and when she returned they engaged into an argument and he hit her while she scratched his neck. After that, both calmed down and went to O.P.’s home where they spent the night. In spite of O.P.’s statements to the effect that he and the applicant had not had sex on that night, the prosecutor recorded in his decision that according to O.P., he and the applicant had had consenting sexual intercourse that night.
The prosecutor dismissed the applicant’s version of the events on the ground that she could have resisted had she really wanted to. The prosecutor also concluded that the applicant consented to go to O.P.’s house and the latter’s parents would have heard had she really resisted.
On 6 August 2010 the Chisinau Prosecutor’s Office initiated administrative proceedings against O.P. for the offence of assaulting the applicant. Those proceedings were later discontinued on the basis of the Statute of Limitations.
The applicant appealed against the Prosecutor’s Office decision not to initiate criminal proceedings against O.P. However, her appeal was dismissed on 9 December 2010 by a superior prosecutor from the Chisinau Prosecutor’s Office without any further investigation into the circumstances of the case.
On 7 February 2011 an investigation judge from the Rascani District Court upheld the applicant’s appeal and ordered a fresh examination of the case. He found that the investigation had been superficial and incomplete.
On 18 April 2011 a prosecutor from the Chisinau Prosecutor’s Office dismissed again the applicant’s complaint concerning rape. This time he heard again the applicant and O.P. who maintained their versions of the events. In particular, O.P. continued to argue that he had not had sexual intercourse with the applicant on 11 May 2010 and submitted that on the evening of 10 May 2010 the applicant made him jealous because she went for a walk with another man, her roommate, and came back late making him wait for a long time. O.P.’s parents, who lived in a house located next to O.P.’s house, stated that they knew that their son had been dating the applicant and that they had not heard any noise in the evening of 10 May 2010. One of O.P.’s friends submitted that he had seen O.P. and the applicant on the evening of 10 May 2010 and that the applicant appeared to him to be calm. He and another friend of O.P. stated that they knew O.P. and the applicant being involved in a relationship. The prosecutor concluded that the applicant has not been raped on the night of 11 May 2010 and that the traces of semen in her vagina could have been from previous sexual encounters with O.P. At the same time, the prosecutor argued that even assuming that they had sexual intercourse on 11 May 2010, that intercourse must have been consented by both partners.
The prosecutor concluded that O.P.’s violent reaction had been provoked by the applicant’s immoral behaviour who had gone for a walk with another man, had not replied to O.P.’s telephone calls and had come back late letting him wait for one hour and a half.
The applicant’s appeals were rejected on 22 August 2011 by a hierarchically superior prosecutor and on 23 November 2011 by a judge from the Rascani District Court.
COMPLAINTS
1. The applicant claims that her right not to be subjected to inhuman and degrading treatment under Article 3 and the right to respect for her private life under Article 8 were violated by the State’s failure to observe its positive obligations to effectively investigate and prosecute crimes of sexual violence.
2. The applicant argues that she had no effective domestic remedy at her disposal to seek reparation and redress for the violation of her rights. She submits that there has been a violation of Article 13 taken in conjunction with Articles 3 and 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Having regard to the procedural protection from inhuman or degrading treatment and the State’s positive obligations in respect of the applicant’s right to respect for her private life, was the investigation in the present case by the domestic authorities in breach of Articles 3 and 8 of the Convention (see M.C. v. Bulgaria, no. 39272/98, ECHR 2003 XII)?
2. Did the applicant have at her disposal an effective domestic remedy for her complaints under Articles 3 and 8 of the Convention, as required by Article 13 of the Convention? Namely, could she effectively seek compensation by way of civil proceedings?
The Government are asked to submit a copy of the full version of the case file, concerning the criminal investigation instituted by the Prosecutor’s Office in respect of the alleged rape and ill-treatment of the applicant.
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