Communicated on 14 November 2018
FIFTH SECTION
Application no. 39257/17
Z against Bulgaria
lodged on 20 May 2017
STATEMENT OF FACTS
The applicant, Ms Z, is a British national, who was born in 2001 and lives in a small village in Yambol region. She is represented before the Court by Ms M. Nikolova, a lawyer practising in Ruse.
A. The circumstances of the case
1. The events of 25 February 2015
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 25 February 2015 the applicant, aged 13 years and 4 months, accepted an invitation by a friend of hers, S., a British girl, to spend the night at the latter family’s home. At the time S. was 16-year old and lived with her family in a near-by village. A 23-year old man, G.S., who was her boyfriend, was also invited to spend the night at the house. In addition, S.’s parents slept in the house that night too. The applicant knew both S. and G.S. well, having spent time with them as a couple on many previous occasions.
In the evening of 25 February 2015, discussing the sleeping arrangements S. suggested that the applicant take the one bed in her bedroom and she and G.S. sleep on the floor in the same room. G.S. refused to sleep on the floor and instead went into a room next door where S. refused to follow him. The applicant remained to sleep on the bed and S. on the floor in the same bedroom.
At about 4 a.m. that night the applicant felt someone climb into her bed. She saw it was G.S. and turned facing the wall intending to go back to sleep. G.S. then held her and started to grope her body with his hands. The applicant moved away from him and closer to the wall, and pushed his hands away from her, but he did not stop. She thought that if she pretended to be asleep, he would leave her alone. Instead, however, G.S. pulled her tights and underwear to her ankles. The applicant was shocked and scared. She was unable to react and did not know what to do.
G.S. climbed on top of her and separated her legs, which she held tight together, by pushing a knee between them. He then penetrated her and continued with the intercourse. The applicant felt pain and revulsion. She told him to get away from her. He did that but before she could pull her underwear back on he got on top of her again. The applicant repeated that he should leave her alone. He asked if she would tell anyone about it. When she said that she would not, he joined his girlfriend on the floor.
In the morning of 26 February 2015, when the applicant went to school, a friend noticed that she was distraught and asked her for the reason. The applicant remained silent at first but soon afterwards confided in her friend that a man had had sexual intercourse with her against her will. The friend advised the applicant to report it. The applicant first told S., the friend in whose house the incident had taken place, about what had happened. The two of them decided to tell the school’s principal. On their way to the principal they came across the school’s porter and told him and a teacher why they were looking for the principal. Another teacher who happened to be nearby also heard the applicant’s story.
2. The investigation
Later that day the applicant reported the incident to the police and a criminal investigation was immediately opened by the local district prosecution service. Both she and G.S. were interviewed the same day. In his first statement he claimed that the applicant had not objected to him holding her and that when he had suggested to her to take off her underwear she had willingly followed suit. He then stated that he had penetrated her “for two minutes” and had interrupted the intercourse as she had told him that it hurt. He added that the motivation for his actions was that he had heard that she was not a virgin.
G.S. was charged the next day with having had sexual intercourse with a person under the age of fourteen, a statutory offence under Article 151 § 1 of the Criminal Code. The following day, the police interviewed G.S. again at the police station and in the presence of his lawyer. He then stated that at around 5 a.m. on the night in question the applicant had woken him by stroking his stomach and penis. He had been very surprised and had told her to stop as his girlfriend was in the room. The applicant had replied that she did not care and had told him that if he did not agree to have intercourse with her she would accuse him of rape. He had refused but she had undressed herself with the words “Let’s have sex”. He had then refused again and had not had intercourse with the applicant.
During the pre-trial phase of the proceedings the applicant’s mother submitted a letter dated 11 April 2015 in which she reported to the investigating authorities that the applicant was self-harming by cutting her arms and legs. In a subsequent letter of 21 August 2015 the mother reported that she had found a note among her daughter’s belongings which read “Shall I kill myself, yes or no. Yes, because it’s not worth it”. The applicant’s mother was very concerned about her daughter’s well-being and the effects of the incident on her mental state.
On 26 August 2015 the district prosecutor issued a recommendation that the case be prosecuted for rape of a person under the age of fourteen. He accordingly sent the file to the competent authority – the Yambol Regional Prosecution Service.
On 4 September 2015 the Yambol Regional Prosecutor assigned to deal with the case refused to take over the case and follow the recommendation to prosecute for rape, as he found that the investigation materials, including in particular the victim’s own statement, did not contain any evidence to meet the legal requirements for the crime of rape. In particular, the prosecutor observed that none of the three hypothesis listed in Article 152 of the Criminal Code (see Relevant domestic law and practice section) had been observed; in that sense the victim had not been deprived of a possibility to protect herself, no force or threats had been used against her, and she had not been brought to a helpless state before the incident.
The case proceeded under the authority of the district prosecution service for the crime of sexual intercourse with a person under the age of fourteen under Article 151 of the Criminal Code.
A number of investigative steps were carried out in the course of the investigation, which included witness interrogation, a psychological-psychiatric expertise and a forensic medical expertise of the victim.
The investigation was completed and presented to the applicant on 12 October 2015. The applicant asked that additional investigative measures be carried out and, in particular, an examination of biological traces found on the perpetrator’s body and an examination of the applicant’s right arm for traces of frequent and intense self-harming. She also requested the prosecution to pursue charges of rape under Article 152 § 1 of the Criminal Code, which defined the offence as sexual intercourse with a person incapable of protecting herself and without that person’s consent. The applicant’s lawyer pointed out to the circumstances in which the incident had taken place, emphasising the audacity of G.S.’s actions which had shocked the applicant. As a result she had felt helpless, betrayed and ashamed and all that had rendered her temporarily incapable of sufficiently protecting herself.
On 27 October 2015 the applicant’s requests were denied by the prosecution. The investigation was presented to her for a second time on 21 December 2015 and was thus finalised.
The indictment was completed on 29 January 2016 and the facts accepted in it by the prosecution were as follows. The applicant had fallen asleep alone on the bed in her friend’s bedroom. In the early hours of the morning she had been awoken by G.S. who had started groping her body. Despite her attempts to obstruct his actions, first by pretending to be asleep and then by pushing his hands away, he had not stopped but instead had carried on sexually touching her. He had then pulled down her underwear, had climbed on top of her, had separated her legs and had penetrated her. The intercourse had been interrupted by the applicant who had felt pain. G.S. had tried to resume it but the applicant had refused to allow it, following which G.S. had joined his girlfriend on the floor.
3. Further developments
In February 2016 the police attempted to raid the applicant’s family house, allegedly to look for drugs. In the absence of a warrant or any other document, the applicant’s mother refused to let them in. More than ten police officers took part in that operation and they all remained outside surrounding the house for about six hours. The applicant, fourteen years old at that time, as well as her eight year-old sister, witnessed the events.
The next day the applicant was called to the local police station where she was asked whether she sold or bought drugs from the accused.
Shortly thereafter the applicant showed her mother excerpts from social media in which a 26-year old man, a friend of the accused by his own admission, abused her verbally and threatened her in connection with her having reported incident and, finally, asked if she used marijuana.
4. Judicial proceedings
A hearing before the Yambol District Court was set for 16 May 2016. According to the applicant, her lawyer asked for her not be subjected to a public interrogation in open court where she would have to face the accused, but instead be interviewed in a protected environment, known as “a blue room”, to avoid secondary victimisation. The applicant’s lawyer obtained to that effect the cooperation of a state-funded agency which organised interviews of minors in a safe environment and free of charge, for the purposes of court proceedings. The Yambol District Court refused the request.
According to the applicant during the court hearing on 16 February 2016 the court refused her request to act as a civil claimant and she could thus not take part in the proceedings.
The court allowed G.S.’s request that his trial be fast-tracked following which G.S. accepted the indictment and the court sentenced him on 16 May 2016 to a year and four months in prison, suspending it for the duration of three years.
G.S. appealed the verdict before the Yambol Regional Court. Irrespective of the absence of legal standing in the proceedings following the rejection of her request to be constituted as a civil claimant, the applicant submitted a victim’s statement in which she described her experience as a victim of rape who was subsequently persecuted, by third parties but also by the police the latter having intended to raid her house, for the purpose of intimidating her because of reporting the crime. She also expressed her disappointment with the inadequacy of the prosecution of the crime against her and the sentencing, and asked the court to take her statement into account when making a decision. The Yambol Regional Court, acting on appeal, confirmed the verdict in a final judgment of 6 July 2016 without acknowledging or referring to the applicant’s statement.
On 21 November 2016 the Yambol District Court sent a notification to the applicant, as a victim in the case, informing her that a verdict had been pronounced, and inviting her to report to the court in that connection. Her lawyer was not notified by the courts about the final verdict.
B. Relevant domestic law and practice
According to Article 51 of the Criminal Procedural Code, when the victim is incapable of bringing a civil claim in the criminal proceedings, be it because of being under the age of majority, or because of physical or mental obstacle, the prosecutor may decide to bring a civil claim on behalf of and in the interest of the victim.
By Article 151 § 1 of the Criminal Code, sexual intercourse with a person under 14 years of age is a punishable offence (statutory rape). Consent is not a valid defence in such cases.
Article 152 § 1 of the Criminal Code defines rape as:
“sexual intercourse with a woman
(1) incapable of defending herself, where she did not consent;
(2) who was compelled by the use of force or threats;
(3) who was brought to a state of helplessness by the perpetrator.”
Although lack of consent is mentioned explicitly only in the first sub-paragraph, the Supreme Court has held that it is an element inherent in the whole provision.
According to Article 152 § 4(1) of the Criminal Code, the punishment for rape ranges between ten and twenty years, if the victim is younger than fourteen years of age.
According to Article 359 §§ 3 and 4 of the Criminal Procedural Code, when hearing the case in fast-tracked proceedings, the court shall not accept to hear civil claims brought by the victims nor the participation of private prosecutor(s).
COMPLAINT
The applicant complains under Articles 3 and 8 of the Convention about the failure of the authorities to conduct an effective investigation into her complaint that she had been raped.
QUESTIONS TO THE PARTIES
1. Have there been violations of Articles 3 and/or 8 of the Convention on account of the alleged ineffective investigation into the applicant’s complaint, and in particular the inadequately light punishment of the perpetrator following proceedings in which the applicant had been unable to participate in a capacity other than that of a witness and which were marked by the failure of the authorities to investigate and prosecute the perpetrator on charges of rape (see M.C. v. Bulgaria, no. 39272/98, ECHR 2003‑XII and Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 63, 75 and 76, 20 December 2007)?
2. Did the treatment of the applicant and of her complaints by the authorities in the context of the investigation demonstrate institutional bias – in particular, by the police in their alleged attempt to intimidate her by trying to raid her house in search of drugs, by the prosecution in their failure to prosecute the perpetrator on charges of rape, and by the courts in their refusal to accept that the applicant be interviewed as a minor in a safe “blue room” as opposed to in open-court trial? Were those actions of the different authorities mentioned above, taken separately or together, compatible with their obligation to carry out an effective investigation into complaints of rape, as required by Article 3 of the Convention (see, among others, Durmaz v. Turkey, no. 3621/07, § 65 with further reference, 13 November 2014)?
Full & Egal Universal Law Academy