By Yaiza Janssens
In the recent case of I.P. v. the Republic of Moldova, the European Court of Human Rights examined state responsibility to establish an effective legal and judicial framework with regard to rape under Articles 3 and 8 of the Convention. In this post, I show that the Court failed to acknowledge that fundamental values and essential aspects of private life are at stake in a rape case and to tackle domestic authorities’ reliance on rape myths.
The applicant, Ms. I.P., is a Moldovan national who was born in 1987 and lives in Chisinau. The case concerned her complaint that the authorities had failed to properly investigate her allegation of rape. She was allegedly raped by O.P., with whom she had been in a relationship for over one year. Towards the end of their relationship, they started to have disputes because O.P. became very jealous and violent. According to the applicant, O.P. was upset with her because he had not been able to contact her. He waited for her outside her house and when she arrived, he assaulted her and forced her into his car and drove her to his house. Her attempts to escape were countered by violent behavior (he punched her and pulled her hair) and threats with violence and death. He kept her locked inside the house all night, violently assaulting and raping her. In the morning, when the applicant attempted again to leave the house, a new dispute broke out, he assaulted her again, forcefully sodomised her against her will and only after that he called a taxi for her.
The applicant immediately lodged a criminal complaint against O.P. and underwent a medical examination. The medical report found multiple bruises on the applicant’s face, lips, neck and thorax and traces of semen were found in her vagina. Some days later, O.P. underwent a forensic medical investigation as a result of an order issued by a prosecutor. The report concluded that the injuries on his body resembled those frequently inflicted by rape victims. In O.P.’s version of the facts, he only admitted having slapped her face several times but denied having used any other acts of violence. He claimed that the applicant had consented to come with him. At first, he insisted that they had both consented to sexual intercourse, to completely deny later that they had had any intercourse at all.
The applicant’s complaint was dismissed by the prosecuting authorities in August 2010, relying solely on O.P.’s version of the facts, according to which the applicant used to date and to engage in sexual activity with him for one year before the events. Her version of the events was dismissed on the ground that she used to date O.P. and have sex with him and “because she could have resisted had she really wanted to”. The prosecutor also concluded that the applicant consented to go to his house and, the latter’s parents who lived with him, would have heard had she really resisted. The applicant appealed against the prosecutor’s decision not to initiate criminal proceedings, but the appeal was dismissed without any further investigation into the circumstances of the case. The applicant appealed to an investigation judge, who upheld the appeal and ordered a fresh examination of the case. Nevertheless, in April 2011, the applicant’s complaint concerning rape was dismissed again.
The reasoning of the Court is rather short. Referring to previous case law, the M.C. v. Bulgaria case (par. 149-153) in particular, the Court considers that States have positive obligations inherent in Article 3 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution (par. 31). The Court finds some flaws in the investigation conducted by the Moldovan prosecutors, such as the fact that the prosecutors refused to initiate criminal proceedings after receiving the applicant’s complaints, “apparently treating her allegations as not serious enough (par. 33)” and in spite of “the findings in the initial medical reports to the effect that the applicant had signs of violence on her body and traces of semen in her vagina and the alleged rapist had scratches on his neck characteristic of rape (par. 33)”.
The Court further finds it “difficult to accept the Government’s position that there had been no sufficient prima facie evidence which would warrant the initiation of criminal proceedings in accordance with Article 274 of the Criminal Procedure Code (par. 33)”. The Court notes that at first, the complaint was dismissed without hearing any witnesses and/or conducting any kind of investigation. Although that decision was quashed by an investigation judge on the grounds that the investigation had been incomplete and superficial, “the prosecutor accepted without any reserve O.P.’s version of the facts according to which the applicant had not been forced to come with him on the evening of 10 April 2010”, no confrontation between the applicant and O.P. was conducted and the only witnesses that were heard were the parents of O.P. and one of his friends (par. 35).
The Court found a procedural violation of Article 3 of the Convention because “the investigation of the applicant’s case fell short of the requirements inherent in the State’s positive obligations to effectively investigate and punish rape and sexual abuse (par. 36)”. In view of this conclusion, the Court held that the absence of effective criminal-law remedies in respect of the applicant’s rape allegation did not raise any separate issue (under Article 8) from that examined under Article 3 of the Convention (par.41).
The European Court has examined state responsibility for establishing an effective legal and judicial framework with regard to rape in X and Y v. the Netherlands and M.C. v. Bulgaria. Unlike the M.C. v. Bulgaria case, where the Court found a substantive violation of the respondent state’s positive obligations under both Articles 3 and 8 of the Convention, in the current case, the Court only finds a procedural violation of Article 3 of the Convention, and finds that Article 8 merits no separate examination.
The Court fails to acknowledge that the concept of private life includes an individual’s sex life (as recognized in for example X and Y v the Netherlands, par.22) and that fundamental values and essential aspects of the private life are at stake in a rape case (X and Y v the Netherlands, par.27). The case outcome would have been more significant if the Court would have examined the case under both Article 3 and Article 8 of the Convention, which both carry inherent positive obligations (M.C. v. Bulgaria, par. 150), since “rape infringes not only the right to personal integrity (both physical and psychological) as guaranteed by Article 3, but also the right to autonomy as a component of the right to respect for private life as guaranteed by Article 8 (M.C. v. Bulgaria, Concurring Opinion of Judge Tulkens, par.1)”.
Even though the facts of the case seem to concern the issue of protecting a person’s integrity or ill‑treatment, the Court did not express itself on the substantive issue of rape itself. The Court does not recognize the debasing character (S.W. v. United Kingdom, par. 44) or the grave nature of the crime of rape itself, as it did for example in the case Aydin v. Turkey, where it held that “rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence (Aydin v. Turkey, par.83)”.
Although the Court found a violation, which emanated from the state in a case of rape between two private individuals, and thus reaffirmed that States have positive obligations inherent in Article 3 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, par. 149-153), more could have been said about the code of practice of the justice system and the ways in which the implementation of legislation de facto encouraged impunity and thereby the perpetration of sexual violence.
The Court could have explicitly condemned the restrictive approach of the Prosecutor’s Office (see also M.C. v. Bulgaria, par. 182). They could have also stated more clearly that in rape cases, especially when there are two irreconcilable versions of the facts, there must be “ a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances (M.C. v. Bulgaria, par. 177)” and that the authorities must “explore all the facts and decide on the basis of an assessment of all the surrounding circumstances (M.C. v. Bulgaria, par. 181)”.
In the M.C. v. Bulgaria case, the Court indirectly seemed to recognize rape and other forms of sexual violence as part of a broader picture of discrimination against women, by referring to Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe on the protection of women against violence (M.C. v. Bulgaria, par. 101) and General Recommendation 19 on violence against women of the United Nations Committee on the Elimination of Discrimination against Women (M.C. v. Bulgaria, par. 104). Several sources confirm the existence of a patriarchal culture and discriminatory attitudes towards women in Moldova, as well as problems with the implementation of the law. A UN Working Group on discrimination against women in law and in practice in Moldavia found “gender bias in the way rape and other sexual offences are investigated and prosecuted” and a “lack of uniform practice regarding the protection of women victims of violence from re-victimization”.
In the I.P. v. the Republic of Moldova case, the Court fails to acknowledge that rape does not occur in a social and political vacuum. The Court also does not address the fact that the applicant’s version of the facts were dismissed by the Prosecutor’s Office in 2010 on the grounds that “she used to date O.P. and have sex with him and because she could have resisted had she really wanted to (par.12)” and again in 2011 based on the same grounds and on the fact that “O.P.’s violent reaction had been provoked by the applicant’s immoral behavior as she had gone for a walk with another person, had not replied to his telephone calls and had come back late letting him wait for a long time (par.18). These are clear examples of revictimization through unfounded stereotypes about rape and gender-based myths relied upon by the Prosecutor’s Office (so-called ‘rape myths’, see also CEDAW Committee, Karen Tayag Vertido v. The Philippines, par. 67). The Court missed the opportunity to tackle the reliance on rape myths in the justice system of Moldova and to reaffirm that rape (and other forms of sexual violence) are part of a broader picture of discrimination against women.
The Council of Europe’s recommendation affirmed in the preamble that “violence towards women is the result of an imbalance of power between men and women and is leading to serious discrimination against the female sex, both within society and within the family”
 The General Recommendation confirms that the definition of discrimination includes gender-based violence.
 For example, the report of the Special Rapporteur on violence against women, its causes and consequences, Yakin Ertürk, following the official visit to the Republic of Moldova conducted from 4 to 11 July 2008, together with the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment states the following on the general situation of women in Moldova; the Statement of UN Working Group on discrimination against women in law and in practice on their Mission to Moldova; and the Concluding comments of the Committee on the Elimination of Discrimination against Women on the combined second and third periodic report of the Republic of Moldova.
 Defined by Burt as “prejudicial, stereotyped, or false beliefs about rape, rape victims, and rapists” (Burt, M.R. (1980) ‘Cultural Myths and Support for Rape’, Journal of Personality and Social Psychology, 8: 217.)