Legal summary
June 2024
Z v. the Czech Republic - 37782/21
Judgment 20.6.2024 [Section V]
Article 3
Positive obligations
Lack of effective application by national authorities of criminal-law system capable of punishing non-consensual sexual relations alleged by vulnerable victim who had not objected to them as they were happening: violation
Article 8
Positive obligations
Lack of effective application by national authorities of criminal-law system capable of punishing non-consensual sexual relations alleged by vulnerable victim who had not objected to them as they were happening: violation
Facts – The applicant complained that she had been sexually assaulted in 2008-2009 by a priest, V.K., who had also been her university professor. She submitted that he had taken advantage of a period when she had been affected psychologically by her father’s death, but also of a deterioration in the state of her health as a result of heart surgery and of a post-traumatic response to previous abuse committed by another priest – a fact which she had shared with V.K.
The police opened an investigation into V.K. in November 2019. In June 2020 they discontinued the investigation, being unable to establish the offences of rape or sexual abuse in the light of the Criminal Code in force at the relevant time.
The applicant’s appeals were unsuccessful.
Law – Articles 3 and 8:
The applicable general principles were set out in the M.C. v. Bulgaria case, among others. In particular, the States’ positive obligations under Articles 3 and 8 of the Convention included the obligation to pass effective criminal laws criminalising and punishing any non-consensual sexual act, including where the victim had not put up any physical resistance, and to guarantee effective application of those laws by means of effective investigations and prosecutions.
At the time when the acts complained of by the applicant had been committed, criminal offences were defined in the Criminal Code. The offence of rape was made out either where violence or the imminent threat of violence had been used to coerce the victim into sexual intercourse or a similar sexual act, or where the offender had taken advantage of the victim’s inability to defend himself or herself. The offence of sexual abuse, which was punished less harshly, was liable to be committed in respect of someone under the age of eighteen or of someone under the assailant’s control, by taking advantage of their dependent state.
In the present case, the Court had to ascertain whether the authorities had acted in compliance with their positive obligations under Articles 3 and 8 of the Convention by affording the applicant effective protection against the non-consensual sexual relations she claimed to have endured. Having noted that the applicant did not explicitly call into question the wording of the law as in force at the relevant time, the Court had to examine whether the authorities’ approach in interpreting the facts and the relevant legal framework had been so defective as to amount to a breach of the respondent State’s positive obligations under the Convention.
The police had concluded that there had been no rape on the grounds that V.K. had not resorted to violence or to the threat of violence and that the applicant had expressed her objection only after – but not during – the sexual relations in question. The fact that she had expressed such objections afterwards, repeatedly, and the possibility that V.K. might have been mistaken in considering her to have consented, did not appear to have had the slightest importance for the authorities, which had also overlooked the possibility that the applicant might have had reasons to remain passive, or not to oppose V.K. on account of his position of authority, without, however, consenting to the acts in question. Thus, despite the applicant’s allegations to that effect, the authorities had not deemed it necessary to assess the credibility of the statements based on the context or to examine the circumstances surrounding them as a whole. In particular, it would surely have been important to take into account the applicant’s psychological state, if only to determine whether she might have been suffering from a post-traumatic response to the previous abuse she had alleged. Moreover, the authorities had not sufficiently examined whether and, if so, to what extent the applicant had been in a particularly vulnerable and dependent situation with regard to V.K. The prosecuting authorities had confined themselves to finding, for the purposes of domestic law and case-law, that the applicant had not lacked the ability to defend herself.
The Court was aware that the domestic case-law, as it stood at the relevant time, recognised that in certain situations, by reason of a state of powerlessness caused, for example, by alcohol, drugs, illness or disability, a victim might be incapable of expressing his or her wishes or of defending himself or herself. Nevertheless, this possibility did not sufficiently take into account situations of vitiated consent resulting from an abuse of vulnerability, or the psychological reactions of victims of sexual assault more generally. It was in the light of that restrictive interpretation of the constituent elements of the offence of rape as defined in the Criminal Code that the authorities responsible for the investigation had decided to discontinue it. The final decision had thus been taken during the preliminary stage of the criminal proceedings, such that the case had never been brought before a court, since domestic law did not allow the applicant to lodge an appeal with a judicial authority.
Concerning the offence of sexual abuse as defined in the Criminal Code in force at the relevant time, the authorities had concluded in the present case that the applicant had not been under V.K.’s control within the meaning of that term, as interpreted in the relevant case-law, and that her free will had not been constrained since she was an adult with full legal capacity and unafflicted by any illness preventing her from expressing her wishes. The authorities’ finding to the effect that the applicant may have felt a certain dependence with regard to V.K. had not prompted them to extend their analysis. In the Court’s view, this approach – which had consisted, in substance, in refusing to assess the facts in their context by taking account of the applicant’s psychological state in the light of the specific circumstances of the case, and not merely of the fact that she was an adult – had been flawed.
It followed that the authorities’ approach in the present case had been incapable of affording the applicant adequate protection. In consequence, the Court found that the respondent State had failed to fulfil its positive obligations, which had required – since at least the M.C. v. Bulgaria judgment of 2003 – the effective application of a criminal-law system capable of punishing the non-consensual sexual relations alleged by the applicant. In that connection, it reiterated that it was not for it to decide on the alleged perpetrator’s criminal liability and that its above finding could therefore not be interpreted as an opinion as to V.K.’s guilt or as a call to reopen the investigation in the present case.
The foregoing considerations sufficed for the Court to find that there had been a breach of the respondent State’s positive obligations under Articles 3 and 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 in respect of non-pecuniary damage.
(See also M.C. v. Bulgaria, 39272/98, 4 December 2003, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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