X v. Cyprus: a Case of Gang Rape, Victim-Blaming, and Retracted Accusations

By Dr. Katarzyna Sękowska-Kozłowska

The judgment in X v. Cyprus of 27 February 2025 marks a significant contribution to the European Court of Human Rights’ developing anti-stereotyping approach in cases of sexual violence. While building on its earlier judgments, particularly J.L. v. Italy (commented on here), which exposed victim-blaming stereotypes and re-victimisation, it brings added value by addressing the issue of consent in situations involving intoxication. At the same time, it remains unsatisfactory in commenting on one of the central issues in the case: the fact that, instead of prosecuting the alleged rapists, the victim was put on trial for making a false accusation.

Facts

The applicant (X), an 18-year-old woman from England, visited Cyprus in July 2019. At a hotel where she was staying with two friends, she met S.Y., an Israeli national. They flirted and had consensual sex on two occasions. The case before Strasbourg concerned the alleged gang rape of X by S.Y. and his friends. According to X, one night when under the influence of alcohol, she agreed to go with S.Y. to his room. During their sexual intercourse, he became violent and refused to stop when she asked him to. Meanwhile, an unspecified number of his male friends (about twelve) entered the room and raped her. Some of them filmed it. Eventually, X managed to escape. She called her friends, who took her to the hotel doctor, who called the police.

The applicant was then taken to the police station. She was questioned by a police officer and then taken to the hospital for a medical examination by a forensic pathologist. He identified some bruises on her body and blood in her vagina. The police searched the hotel room and collected numerous used condoms. Twelve suspects were arrested the same day. Seven of them remained in custody. In general, they admitted that they had planned to have group sex with X, but denied raping her and stated that she had sex with them voluntarily. Witnesses (including X’s friends and a hotel doctor) stated that X was crying and panicking after the incident.

Ten days after the incident, X was called to the police for a further statement and interrogated for almost four hours. The next day she retracted her statement, saying that her accusations of rape were false and that she had lied in response to learning that she had been filmed during the incident. She was immediately arrested for the offence of public mischief while the suspects of rape were released without being charged. The court of the first instance found X guilty of public mischief and sentenced her to four months’ imprisonment, suspended for three years. The court of second instance (the Supreme Court) acquitted her on the grounds that she had given her statement after a long interrogation and in the absence of a lawyer, and that the court of first instance had misinterpreted the evidence in the rape case. Subsequently the applicant asked the Attorney General for re-investigation of the rape case. Her request was rejected on the grounds that, among others, she was not reliable because she could not give a clear account of the incident, including the number of people involved, and that material from the mobile phones of some of the suspects showed that she had voluntarily engaged in sexual activities with them on various occasions.

Judgement

The applicant complained of a failure of the domestic authorities to effectively discharge their positive obligations to investigate and prosecute acts of rape against her. She relied on Articles 3 and 8 of the Convention. The Court accepted her claims and held unanimously that the respondent state violated its procedural obligations under Articles 3 and 8 of the Convention.

In assessing the merits, the Court referred to its previous judgments related to the effectiveness of investigations in cases of sexual violence (M.C. v. Bulgaria, M.G.C v. Romania, X. v Greece). It also recalled the requirement of effective penalisation and prosecution of any non-consensual sexual act, including where the victim has not resisted physically.

With regard to the course of the proceedings in the discussed case, the Court noted the proper elements of the investigation, such as its speediness. At the heart of shortcomings, it found “’overly hasty termination of the investigation into the applicant’s allegations of rape, prompted by the applicant’s retraction of her initial statements and the immediate initiation of criminal proceedings against the applicant’ (para. 112). The Court acknowledged that some of the failings in the investigation had been identified by the Supreme Court. However, these findings could not satisfy the requirement of an effective investigation because they did not remedy the initial flaws.

The Court then identified a number of shortcomings and omissions by the national authorities in their handling of the evidence (para. 115), what undermined the investigation’s ability to establish the circumstances of the case and verify the various accounts of the alleged rape. It observed that they cannot be considered isolated omissions in the investigation and reminded that in rape allegation cases where the investigating authorities are faced with irreconcilable versions of facts, they should make a consistent effort to establish all the surrounding circumstances and to engage in a context-sensitive assessment of the credibility of the statements (para. 116).

The Court attached particular importance to the failure of the authorities to examine whether there had been consent. In particular, it was not investigated how the consumption of alcohol and cocaine could have affected the applicant’s capacity to consent. No mention was made that she had previously refused to have sex with some suspects or objected on another occasion when they were entering the room when she had consensual intercourse with S.Y. The evidence that could point to the alleged abuse (e.g., the applicant’s bruises, her blood on the condoms and hygiene pad) was ignored. In this context, the Court found it difficult to accept the Government’s position that there had been no sufficient or satisfactory evidence which would warrant the initiation of a prosecution (paras. 117-119).

In the Court’s opinion,

The Court reiterated that circumstances concerning the victim’s behaviour or personality cannot excuse the authorities from the obligation to carry out an effective investigation.

The Court also found that there was a selective and inconsistent approach to the assessment of evidence, which was indicative of bias, as the information provided by the suspects was taken for granted and the testimony of the applicant and her friends was treated with suspicion, despite being corroborated by the hotel doctor, who was an independent party (para. 120). The decision not to reopen the investigation was largely based on the inconsistencies in the applicant’s statements, but it failed take into account the circumstances under which they were made: the fact that the applicant testified just after the alleged rape, while shocked, tired and possibly still intoxicated. X, a foreigner and only 18 years old, was interrogated three times for several hours, twice without a lawyer, psychologist, or social services present. The Court concluded that this constituted ‘evidence of re-victimisation through the authorities’ failure to adopt a victim‑sensitive approach and to conduct their investigation so as to mitigate distress to the applicant’. (para. 123). Finally, it observed that the case revealed ‘certain biases concerning women in Cyprus which impeded the effective protection of the applicant’s rights as a victim of gender-based violence and which, if not reversed, run the risk of creating a background of impunity, discouraging victims’ trust in the criminal justice system, despite the existence of a satisfactory legislative framework’ (para. 125).

Commentary

Overall, the judgment demonstrates the Court’s evolving, sensible approach to sexual violence, initiated by the landmark case of M.C. v. Bulgaria. I think it deserves a generally positive assessment, especially as it was unanimous. In this brief comment, I would like to address five issues:

First, this judgment cements the recognition of biases and gender stereotypes that can affect the outcome of proceedings and lead to violations of victims’ rights. As we know from other analyses published on this blog, the road to recognising, naming and addressing rape stereotypes has been long, winding and marked by disappointing (see comment on  I.P v. the Republic of Moldova ) or commendable but not fully satisfactory judgments (see comments on M.G.C v. Romania,  Y. v. Slovenia and J.L. v. Italy). The facts of the present case are very similar to those of J.L. v. Italy. Both cases involved young women who were gang-raped while consumed alcohol and engaged in social activities by men they knew or with whom they had previously had sexual relations. In J.L. v. Italy, the Court condemned the way in which the court of second instance had questioned the victim’s credibility by referring to her previous sexual relations, her behaviour on the night of the incident, which was described as ‘extremely provocative and vulgar’, or even the fact that she had shown her red lingerie. In the case of X. v. Cyprus, the statements of the state authorities were not so explicit and misogynistic at first sight. However, it should be noted that the national authorities, in particular the Attorney General, who decided to close the case definitively, focused on the applicant’s behaviour (for example, whether she had engaged in group sex activities with the suspects before the alleged rape), rather than carefully assessing the behaviour of the suspects and the evidence against them. The Court, perhaps sensitised by J.L. v. Italy, rightly exposed prejudicial gender stereotypes and explicitly described them as ‘victim-blaming’.

Following the judgment in J.L. v. Italy, the Court condemned the actions of the State authorities which led to the re-victimisation of the applicant (including numerous interrogations by the police, also by the male officers, lack of psychological and legal assistance). Unlike in J.L. v. Italy, the Court noted the young age of the victim combined with her situation as a foreigner alone in Cyprus. This could indicate that the Court was keen to recognise the applicant’s vulnerability, but this was not the case. As we know, the Court has recognised the vulnerability of victims of sexual violence in relation to persons with intellectual disabilities (see commentary in E.B. v. Romania) and children (see commentary in X. and others v. Bulgaria). The question remains whether other circumstances, such as those identified here (young age, foreigner status, lack of external support), should be identified as ‘vulnerability factors’? What about survivors of sexual violence in general? What should be the threshold for them to be considered vulnerable? Is the fact of having been exposed to severe, traumatic sexual abuse, regardless of the person’s personal situation, not enough to be considered vulnerable? These issues, raised by Margarita S. Ilieva in her commentary on J.L. v. Italy, remain unresolved in X. v. Cyprus.

The striking element of X. v. Cyprus is the reaction of the State authorities to her retraction statement. The issue of recantation by victims of gender-based violence, including sexual violence, is a common and complex one, resulting from many factors, including psychological ones (see e.g. here and here). In this case, the reaction of the authorities was shocking and clearly disproportionate: the alleged victim was immediately arrested for public mischief, found guilty, sentenced to four months’ imprisonment (suspended for three years), and finally acquitted on appeal. The Court admitted that this fact ‘laid at the heart of the case’ (para. 112). However, it did not comment on the use of public mischief proceedings in the context of re-victimisation and the potential chilling or even retaliatory effect this may have on persons reporting sexual violence. It would also be valuable for the Court to examine this issue through the anti-stereotyping lens and analyse whether such practices are guided by one of the key rape myths that women are likely to lie about rape and therefore deserve to be punished.

What is satisfying is the Court’s approach to consent, the issue which was completely ignored in J.L. v Italy (see again here). It attached particular importance to the fact that the authorities had failed in their central task of considering whether there had been consent (para. 117). In particular, it noted that no assessment was made of the fact that the victim had consumed alcohol and may have been under the influence of cocaine. Given that a person’s intoxication is a common element in rape cases and should be an important factor in assessing the victim’s capacity to consent (see for example here), this judgment contributes to the development of the consent-based standard introduced by the Istanbul Convention.

Finally, there is the wider gender context of the case. This was clearly recognised by the Court, which identified prejudicial gender stereotypes by taking into account not only the way in which the applicant was treated, but also the findings of GREVIO, the monitoring body of the Istanbul Convention, in relation to Cyprus (para. 123). It indirectly acknowledged the systemic, discriminatory nature of the case by stating that it ‘reveals certain biases against women in Cyprus’ (para. 125). It suggests that there may be a concrete basis for recognising the case in the context of gender discrimination. However, the violation of Article 14 was not raised by the applicant. This can be seen as an adverse effect of the Court’s reluctance to consider a violation of Article 14, not only in cases of sexual violence (as exemplified by J.L. v. Italy), but as part of a general, long-standing trend to treat discrimination claims as secondary and not to deal with their substance (see, for example, here). As the Court’s jurisprudence in domestic violence cases shows, starting with the famous Opuz v Turkey, the Court has gradually opened up to examining domestic violence through the prism of gender discrimination and has developed significant case law in this area (see, for example, here). Let’s hope that this aspect will also be explored in future cases of sexual violence.

Conclusions

The judgment in X v. Cyprus reinforces the Court’s evolving approach to sexual violence. While the Court’s analysis is commendable in many respects – especially its attention to gender stereotyping, the re-victimisation of the applicant, and the failure to assess consent – it also exposes unaddressed issues, such as the absence of a vulnerability framework, the use of public mischief charges against a rape complainant, and the unexplored gender-discriminatory context of the case. Nevertheless, it not only echoes earlier judgments like J.L. v. Italy but also advances the discourse on the state’s obligations in cases of sexual violence.