By Corina Heri, postdoctoral researcher at the University of Amsterdam
Three years ago, on this blog, Lourdes Peroni wrote about the failings of the domestic response to the alleged rape of an 11-year-old girl in M.G.C. v. Romania. Today, the ECtHR is continuing to apply ‘coercive obligations’ regarding rape and sexual violence, as crystallized by that judgment. On 19 March 2019, it issued the latest in a line of cases concerning failures to protect victims of sexual violence and to put in place a system that allows for the effective punishment and prosecution of sexual offences. In this specific context, the Court has issued some of its arguably most victim-oriented and context-sensitive jurisprudence to date, relying heavily on the vulnerability of the victims.
The Facts of the Case
My summary of the facts here will be brief, because the Court has also written one in its press release.
One evening, as she was walking home, the applicant in this case – who has been diagnosed with oligophrenia, a slight intellectual disability – was approached by a man (T.F.S.). He began walking with her and trying to persuade her to engage in oral sex. After she refused, he allegedly grabbed her arm, pulled her to a nearby cemetery, and threatened her with a knife. In a state of shock, she complied with his orders to undress and lie on the ground. He then proceeded to rape her, warning her not to tell anyone what had happened.
After a criminal complaint by the applicant, the police questioned T.F.S., who admitted to sexual intercourse with her but alleged that it was consensual. A forensic examination found that the applicant had bruises on her arm but no “rape-specific” genital injuries. The prosecution decided not to open criminal proceedings because T.F.S.’s actions had not constituted a crime. It noted that the applicant had not asked passers-by for help before the alleged rape took place; that she had no genital injuries; and that the origin of her bruises was unclear.
The domestic authorities ignored the applicant’s requests for protection from retaliation along with the judgment of a second instance court that ordered various investigatory steps, including a psychiatric examination and a socio-moral assessment of the applicant. This court had also, to no avail, found that the absence of genital injuries was consistent with rape under threat, and ordered the prosecution to take into account that T.F.S. had been previously convicted of rape.
The Reasoning on the Merits
In their judgment, and considering the case under Articles 3 and 8, the Fourth Section Committee formation made up of Judges Pinto de Albuquerque, Kūris, and Motoc reiterated past cases, including M.G.C. v. Romania, I.C. v. Romania, and M.C. v. Bulgaria. It is well-established, based on these cases, that States have a positive obligation to enact and apply criminal-law provisions that effectively punish rape, and that they must particularly protect children and other vulnerable persons. As a result, the judges reiterated that “any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual’s sexual autonomy” (§ 56).
Like in I.C. v. Romania, the Committee found that, as T.F.S. had admitted to the sexual intercourse, the main question before the domestic authorities was whether it was consensual. Here, like in I.C., and given the victim’s and alleged perpetrator’s irreconcilable versions of what had happened, the Court held that the domestic authorities should have conducted a context-sensitive assessment of the credibility of their statements, and verified all of the circumstances. Questioning people known to the applicant and the alleged perpetrator or consulting a specialist psychologist were possible options. In this same context, the Court held, the authorities could verify whether the victim had any reason to make false accusations against the perpetrator. However, none of this was done (§ 58).
In this regard, one of the relevant factors was the applicant’s vulnerability. Given her slight intellectual disability, the Court held, the existence of detection and reporting mechanisms was essential. To avoid creating “a background of impunity” (§ 59), the authorities should have been more diligent in analysing the applicant’s statements, and the validity of her consent should have been evaluated in light of her intellectual capacity (§ 60). The authorities had unduly emphasized the absence of proof of resistance, and failed to take a context‑sensitive approach. This was aggravated by the absence of any psychological or psychiatric assessment.
The Court noted that the conclusions of the prosecutor and the domestic courts were based only on the applicant’s failure to ask for help and the lack of the type of injuries specific to rape. However, the Romanian Criminal Code did not require physical resistance by the victim. At the same time, the case-law submitted by the Government (the State had submitted 77 domestic judgments concerning convictions for rape and 66 indictments) showed no settled and consistent domestic practice on rape absent physical injuries.
Without expressing an opinion on the guilt of T.F.S. (which it cannot do, of course, given that it is not a domestic criminal court), the Court found that the failure to adequately respond to the applicant’s allegations of rape and to adequately respect her rights as a victim raised doubts about the effectiveness of the domestic system, and deprived the domestic criminal proceedings of meaning. Therefore, the respondent State had failed to meet its positive obligations to effectively apply a criminal-law system punishing all forms of rape and sexual abuse and to adequately protect the applicant’s physical integrity. There had accordingly been a violation of Articles 3 and 8 ECHR.
As noted, the Court established in cases such as M.G.C. v. Romania and I.C. v. Romania that States have a positive obligation to enact and apply criminal-law provisions effectively punishing rape, and that they must particularly protect children and other vulnerable persons. The alleged rape in question here, in E.B., occurred in 2008 (the application was filed at the Court in 2010, a shocking nine years ago). In other words, though the judgment in this case came much later, it should be seen as a contemporary to M.G.C. and I.C., more than as a follow-up.
In deciding this case, the Committee carefully applied the existing case-law concerning the criminalization of rape and sexual violence and the context-sensitivity required concerning vulnerable applicants. An ECHR-based obligation to criminalize may be surprising to some. While much of the Court’s case-law, for example under Articles 5, 6, and 7 ECHR, is focused on constraining the domestic criminal law and the State’s coercive power, these types of cases expand it.
The obligation to criminalize is part of States’ so-called ‘coercive obligations’, which Liora Lazarus and Natasa Mavronicola have discussed elsewhere in conjunction with the potential for ‘coercive overreach’ by the Court. Here, I would argue that this risk is tempered by the fact that the coercive obligation in question does not attach to all harms under Article 3 or 8 ECHR, but only to the very grievous ones at hand, and also that an obligation of criminalization and effective application of the resulting criminal law in these contexts (which is, of course, different from an obligation to convict) is an unavoidable part of ensuring deterrence and effective protection of the rights concerned.
As the Court stated in I.C. v. Romania and reiterated here, intellectual disability puts applicants “in a heightened state of vulnerability”, which requires particular diligence in analysing their statements. This July, during a panel at the 2019 ICON•S conference co-invoked by Natasa Mavronicola and this blog’s co-editor Laurens Lavrysen, I will argue that relying on vulnerability reasoning in these contexts can tailor and thereby improve States’ coercive obligations. In other words, the vulnerability concept focuses these obligations, requiring a more victim-oriented perspective when it comes to certain particularly vulnerable applicants (particularly children or persons with mental disabilities).
In this case, the Committee took the applicant’s vulnerability seriously, and in my opinion it reached the correct outcome. However, it is not always clear what the Court means by vulnerability in these circumstances. First, it’s not really clear whether the Court requires the same care and diligence where applicants who have suffered sexual violence are not vulnerable because of one of the traits or situations mentioned above (i.e. childhood age or intellectual disability). Here, although the applicant’s disability was described as slight (and did not hinder her from representing herself during the tail end of the proceedings before the Court (§ 5)), the Committee emphasized her vulnerability, as has been done in past coercive obligations cases. In the future, here’s hoping the Court will clarify what the standards, and particularly the coercive obligations, are regarding victims who do not fall under one of its previously recognized categories of vulnerability, but who nonetheless deserve a diligent examination of their claims.
Secondly, there were some telling failures on the part of the State authorities to display sensitivity or ‘particular diligence’ for the victim in this case, and the Committee did not explicitly challenge them. First, there was no engagement with the fact that police officers had allegedly advised the applicant to withdraw her complaint given that there were no witnesses, “she was asking for it” and “it [presumably the rape] did her good”. Neither was there any meaningful criticism by the three-judge Committee of the domestic authorities’ emphasis on the applicant’s failure to ask for help while being accosted by T.F.S. on her way home, before she was raped. This should be called out for what it is, namely a form of victim-shaming. In any event, the “freeze” response is a well-known one for victims of sexual assault, and their credibility should not suffer for it. The Committee also ignored the respondent State’s arguments about the applicant’s failure to inform police about her disability, or that it had been compensated for by the presence of her husband, instead of explicitly countering them.
In addition, like I.C. and M.G.C., this case shows that submitting domestic case-law from other cases that went differently than the one at hand does not easily convince the Court of the fact that States have complied with their positive obligation to enact and apply criminal-law provisions that effectively punish rape. In M.G.C., the State submitted some domestic case-law as evidence of adequate differentiation of the offence of rape from sexual intercourse with a minor under the domestic system. There, the Court found that this did not prove consistency in the national practice, and that the State therefore fell short of its coercive obligations (M.G.C., §§ 65 and 74). In I.C. v. Romania, this strategy backfired as well, because the domestic case-law submitted showed that, in other proceedings, a more victim-oriented investigation had been conducted (I.C., § 57). Here, in E.B., the respondent State provided its most comprehensive overview of domestic case-law to date. Nevertheless, the Court noted that very few of the cases submitted (six out of the seventy-seven) involved convictions for rape absent injuries or other direct evidence. In other words, it is clear that a few ‘good’ examples do not necessarily mean that a State has developed a consistent practice. However, we are left wondering what the opposite finding – i.e. that the domestic practice shows that direct evidence of rape is consistently not required by the domestic authorities – would have meant. Would the Court have found no violation of the State’s coercive obligations in the individual case if such consistency could have been demonstrated?