By Corina Heri
This guest post was written by Corina Heri, Ph.D. researcher at the University of Zürich, Switzerland, and visiting researcher at the Human Rights Centre, Ghent University.
On the 28th of May, the Fifth Section of the Strasbourg Court issued its judgment in Y. v. Slovenia. The judgment in the Y. case ties in to some of the criticism recently formulated by Yaiza Janssens on this blog concerning the I.P. v. the Republic of Moldova case. While noting the novelty of the Court’s approach under Article 8 in Y., the present contribution will point out some remaining room for improvement in the Court’s approach to sexual violence-related cases.
On Facts of the Case and the Applicant’s Complaint
The application underlying Y. was introduced by a young woman who had brought proceedings on the domestic level accusing X., a man more than 40 years her senior, of sexually assaulting her. At the time of the alleged crimes, in 2001, the applicant was aged 15 and X., a family friend, had been helping her prepare for the beauty pageants in which she participated. The applicant alleged that X. had attempted to have sexual intercourse with her various times, including while she was sleeping, that he had groped her, had performed oral sex on her and had forced her to do the same to him.
Gynecological evidence regarding the applicant did not show conclusively that she had had sexual relations with Y.; however, psychological examinations showed that she exhibited symptoms consistent with sexual victimization. Criminal proceedings were begun against X. and twelve hearings were held at first instance in the case. At one of these hearings, X. cross-examined Y. He personally asked her over one hundred questions, including asking her to confirm that she could cry on cue, that she had actively sought his company and that she had confided in him that she wished to dominate men sexually (§ 34). X. frequently repeated his questions and disputed the accuracy and credibility of the answers provided by Y. (§§ 35-36). The applicant grew agitated and cried, wherefore three recesses were ordered by the court. After one of these recesses, X. asked the applicant whether she would feel better if they just went out to dinner (§ 37).
Ultimately, X. was acquitted – in application of the in dubio pro reo principle – on the basis of medical evidence that contradicted Y.’s account of events. The symptoms of trauma exhibited by the applicant, the first-instance court furthermore held, could have stemmed from another source, such as the inappropriate behavior of her former stepfather (§ 53).
Before the Court, the applicant alleged that the respondent State had failed to protect her from the traumatic experiences to which she was exposed during the criminal proceedings. She complained not only that the respondent State had not complied with its positive obligation to effectively investigate and prosecute cases of sexual abuse under Article 3 ECHR (the prohibition of torture and inhuman and degrading treatment), but also that her personal integrity under Article 8 (the right to respect for private and family life) had not been adequately protected in the context of the proceedings.
Article 6 § 3 (d) ECHR and the Protection of Victims
For fairness reasons, defendants in criminal trials must receive an opportunity to challenge evidence against them. Article 6 § 3 (d) ECHR provides everyone charged with a criminal offence with certain minimum rights, including the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. This means that, before defendants can be convicted, it is necessary to produce all evidence against them in their presence at a public hearing allowing for adversarial argument. Exceptions to this rule, while possible, must not infringe the rights of the defense.
Where the proceedings in question concern alleged sexual offences, the victim often experiences the proceedings themselves and particularly the confrontation with the alleged perpetrator as an ordeal. In these situations, the authorities are confronted with a conflict between the protection of the victim and the rights of the defense. Measures to protect the victim are possible only to the extent that they can be reconciled with an adequate and effective exercise of the defendant’s rights and relevant reasons for the measures are adduced. In addition, before excusing a witness from testifying on grounds of fear, trial courts must satisfy themselves that all available alternatives would be inappropriate or impracticable.
The Court has, with a certain frequency, heard complaints about interference with defendants’ rights under Article 6 § 3 (d) ECHR to question witnesses. The Y. case, however, came from the opposite perspective, as it was brought by a victim who alleged that the authorities had failed to protect her from trauma she experienced inter alia while being questioned by the defendant. Thus, the Strasbourg judges not only examined whether the respondent State had complied with its positive obligation to effectively investigate and prosecute cases of sexual abuse under Article 3 ECHR, but also whether the applicant’s personal integrity under Article 8 had been protected in the context of the proceedings.
Commending the Court on its Judgment
This case concerned the procedural obligations of the respondent State in investigating the alleged sexual assault of the applicant, and not the sexual assault in and of itself as a violation of the applicant’s human rights. The Court scrutinized the domestic proceedings under both Articles 3 and 8, finding a violation of the requirement of promptness implicit in the procedural obligations under the former provision.
However, the novelty in this case lies elsewhere, namely in the fact that the Court found a violation of Article 8 and recognized that “cross-examination should not be used as a means of intimidating or humiliating witnesses”. Some of X.’s statements lacked a basis in evidence, it held, and were intended to degrade the character of the applicant (§ 108). Considering whether the applicant’s personal integrity had been violated, the Court thus held that the “offensive insinuations” made by X. about Y. “exceeded the limits of what could be tolerated for the purposes of enabling him to mount an effective defense” and should have prompted the presiding judge to intervene. Limiting X.’s personal remarks, the Court held, would have mitigated the distressing nature of the experience for the applicant without curtailing X.’s right to defense (§ 109). The Court thus avoided directly addressing the conflict of rights at hand, but nonetheless resolved the issue before it in the alleged victim’s favor, providing recognition of the anguish, humiliation and degradation experienced by the applicant.
Pointing Out Room for Further Improvement
The Court considered the applicant’s claims concerning the traumatic nature of her experiences during the trial exclusively under Article 8, whereas the lack of procedural promptness was examined in the context of Article 3. Due to this, the Court did not consider whether the suffering and humiliation caused to Y. during the course of the proceedings, including the repeated confrontations with her alleged abuser, had reached the threshold of severity required for a violation of Article 3. Under that provision, no mention was therefore made of the particular vulnerability of the applicant as a minor subjected to sexual assault. Recognition of that vulnerability would not only have benefitted the consistency of the Court’s vulnerability reasoning under Article 3, but it would also have provided further acknowledgment of the applicant’s suffering.
Furthermore, the present contribution seconds Yaiza Janssens’s conclusion on the need to combat rape myths and improve domestic treatment of alleged sexual violence. The Court could have done more to actively address and challenge the rape myths rampant in the domestic examination of this case. X.’s cross-examination of the applicant, the position taken by his counsel and even the report of one of the gynecological experts from a Center for Cosmetic & Reconstructive Gynecology (§ 22) insinuated that the applicant may have incited or desired X.’s advances, chosen not to defend herself or made a false report of rape. In the interest of procedural fairness, the Court should both name and contest harmful stereotyping of the victims of sexual violence.
 Colac v. Romania, no. 26504/06, Judgment of 10 February 2015, § 41, with further references.
 S.N. v. Sweden, no. 34209/96, Judgment of 2 July 2002, ECHR 2002-V, § 47; Zdravko Petrov v. Bulgaria, no. 20024/04, Judgment of 23 June 2011, § 35; P.S. v. Germany, no. 33900/96, Judgment of 20 December 2001, § 28.
 Lučić v. Croatia, no. 5699/11, Judgment of 27 February 2014, § 75.
 M.C. v. Bulgaria, no. 39272/98, Judgment of 4 December 2003, Reports 2003-XII (extracts), § 183; C.A.S. and C.S. v. Romania, no. 26692/05, Judgment of 20 March 2012, not reported, § 81.
 Edwards Katie M., Turchik Jessica A., Dardis Christina M., Reynolds Nicole and Gidycz Christine A., ‘Rape Myths: History, Individual and Institutional-Level Presence, and Implications for Change’, 65 Sex Roles (2011), 761-773.
 Timmer, Alexandra, ‘Toward an Anti-Stereotyping Approach for the European Court of Human Rights’, 11(4) Human Rights Law Review (2011), 707-738.