Beyond Formal Compliance: Ineffective Investigations, Procedural Exclusion and Secondary Victimisation in X v. Georgia

By Sotiris Paphitis

In its recent judgment in X v. Georgia, the European Court of Human Rights (ECtHR or the Court) was once again confronted with a question that has become increasingly prominent in its recent case-law on sexual violence: can a State be said to have complied with its positive obligations under Articles 3 and 8 ECHR where it maintains a formally adequate legal framework but fails to apply it effectively in practice? The Court’s answer seems clear. Formal compliance is insufficient where the investigative response is characterised by inactivity, procedural exclusion, and practices that risk re-traumatising the victim.

Facts

The case concerned allegations of repeated sexual abuse of a minor by her stepfather, mainly between May and July 2019. The applicant disclosed the abuse in 2021, prompting the immediate initiation of a criminal investigation (para. 8). In its initial stages, the investigation appeared relatively diligent: the applicant was interviewed in the presence of a psychologist, witnesses were questioned, forensic examinations were conducted, and contemporaneous communications were recovered, including messages in which the applicant had described the abuse (paras. 12–35). Despite this evidentiary basis, however, the investigation ‘remained stagnant since July 2021, now approaching five years, without any further investigative steps being taken’ (para. 121). Crucially, throughout this period, the applicant was never formally recognised as a victim, thereby limiting her ability to participate meaningfully in the proceedings (para. 122).

Judgment

The Court’s reasoning follows a familiar structure. It first confirms that the Georgian legal framework is, in principle, adequate. Domestic law criminalises both penetrative and non-penetrative sexual acts, recognises psychological coercion, and affords enhanced protection to minors (paras. 117-120). In this respect, the respondent State had complied with its obligation to put in place appropriate criminal-law provisions. Yet, the principle of effectiveness remains a constant theme in the Court’s jurisprudence. The violation in this case arose at the level of implementation. While the investigation was initiated promptly, it subsequently became dormant without explanation, a delay that the Court found incompatible with the requirement of special diligence in cases involving child victims (para. 123). Indeed, the Court stressed that ‘justice delayed is often justice denied’ (para. 122). Moreover, the authorities’ refusal to recognise the applicant as a victim (despite the existence of prima facie evidence) was interpreted as indicative of a ‘persistent failure – or possible unwillingness’ to investigate the allegations properly (para. 130). The domestic courts’ conclusion that the applicant had not suffered any harm, notwithstanding the evidentiary record, was particularly difficult to reconcile with the State’s procedural obligations (para. 124). 

Commentary

From Formal Adequacy to Practical Effectiveness

The judgment therefore reinforces an increasingly clear trajectory in the Court’s jurisprudence: the focus of Articles 3 and 8 analysis is shifting from the adequacy of legal norms to the effectiveness of institutional practice. This mirrors the Court’s reasoning in similar recent cases such as X v. Cyprus, where it emphasised that States must not only enact laws prohibiting sexual violence but must also ensure their effective and unbiased application in practice (a more complete analysis of this case can be found here). As has been observed in recent commentary, that judgment also forms part of the Court’s developing anti-stereotyping approach in sexual violence cases, while exposing the structural risks of victim-blaming when investigative and prosecuting authorities are ill-equiped to handle sexual crime cases. The coexistence of a ‘satisfactory legislative framework’ with a deficient investigative response (both in terms of timeliness and effectiveness) reveals a deeper structural problem. The protection of Convention rights depends not on the formal existence of rules, but on their operationalisation by investigative authorities.

Timeliness as a Requirement of Effective Investigations

Indeed, the requirement of promptness in criminal investigations is a central component of the State’s procedural obligations under Articles 3 and 8 ECHR. The Court has consistently emphasised that an effective investigation must be capable of establishing the facts and securing evidence without delay, as the passage of time inevitably risks undermining both the availability and reliability of evidence (see, inter alia, S.Z. v. Bulgaria, para. 47). This requirement acquires particular importance in cases of sexual violence involving minors, where the Court has stressed the need for ‘special diligence’ in view of the victim’s vulnerability and the risk of retraumatisation (see P.M. v. Bulgaria, paras. 64-65). At the same time, timeliness also serves the interests of the alleged perpetrator, whose right to a fair trial under Article 6 ECHR may be compromised by undue delays, particularly where such delays affect the quality of evidence or the ability to mount an effective defence (see, by analogy, W. v. Slovenia, para. 65) and where prolonged investigations may themselves carry reputational and social consequences. Beyond evidential considerations, delays may have a chilling effect on victims’ willingness to engage with the justice system, while prolonged investigative inertia may itself amount to a form of secondary victimisation, reinforcing perceptions of institutional neglect (see Paphitis, 2025). Timeliness is therefore not merely a procedural requirement, but a structural condition underpinning the fairness and effectiveness of the criminal justice process as a whole.

Victim Status and Procedural Inclusion

Within this broader framework, the refusal to grant victim status emerges as a particularly significant aspect of the case at hand. The denial of this status had concrete procedural consequences: it prevented the applicant from accessing the case file and from participating effectively in the investigation (paras. 37 and 122). In this sense, victim status functions as a gateway to procedural justice. Its absence does not merely limit participation; it alters the structure of the proceedings by marginalising the individual whose rights are at stake. Conversely, where victims are allowed to participate effectively in criminal proceedings, transparency is enhanced and accountability strengthened. The Court’s reasoning here recognises that procedural exclusion of this kind is incompatible with the requirements of an effective investigation set out in previous Article 3 judgments (see Bouyid v. Belgium [GC], para. 122 and X v. Bulgaria [GC], para. 189). As has been observed in the literature, failures in investigative processes can result in victims being displaced from the centre of the proceedings, or even treated with suspicion rather than as rights-bearers (see Paphitis, 2025 and Doak, 2008). The present case reflects precisely such a dynamic.

The Court’s treatment of secondary victimisation further develops this line of reasoning. It found that certain investigative measures – notably an unnecessary gynaecological examination and the framing of certain questions during the applicant’s interview – caused additional distress to the applicant (paras. 127-129). While the Court accepted that medical examinations may in principle be justified in cases of alleged sexual abuse, it was unable to identify any justification in the present case, particularly given the absence of allegations of penetration (para. 128). This is consistent with established jurisprudence, which clarifies that the Convention requires the penalisation of all non-consensual sexual acts, even in the absence of physical resistance and therefore visible physical injury (see M.C. v. Bulgaria, para. 166).

Furthermore, the questioning of the applicant in terms that suggested possible consent or desire was similarly criticised by the Court as inappropriate and as capable of inducing feelings of self-blame (para. 129). These findings are consistent with broader critiques of investigative practices in sexual violence cases, where victims may be subjected to intrusive or irrelevant questioning that undermines their dignity and credibility (GREVIO, para. 309).

Importantly, the Court does not treat these elements as peripheral. Instead, they form part of the overall assessment of the investigation’s effectiveness. An investigation that exposes a victim to additional trauma cannot satisfy the requirements of Articles 3 and 8. In this respect, the judgment aligns with the Court’s earlier case-law emphasising that procedural obligations include not only the duty to investigate, but also the duty to conduct investigations in a manner that respects the dignity and psychological integrity of victims (see X v. Cyprus, para. 123).

Discrimination and the Evidential Burden under Article 14

The case also illustrates the evidential challenges that continue to characterise the Court’s approach to discrimination claims in the area of sexual crimes investigations. Although the applicant alleged a violation of Article 14, the complaint was dismissed as being manifestly ill-founded due to lack of evidence (para. 134). In particular, the applicant was alleging that her status as a female child victim, as opposed to a male child victim, had been the primary reason for the investigators’ failure to properly examine her allegations of sexual abuse (para. 132). The ECtHR observed that the applicant failed to provide any evidence capable of suggesting that, in comparable cases of sexual abuse, investigative failures disproportionately affect underage girls as compared to underage boys. In particular, the Court said, the case file contained no information as to the prevalence, if any, of ineffective investigations into the abuse of girls in comparison with those concerning the abuse of boys. This case was then contrasted with the recent judgement in B.A. v. Iceland, where the applicant sought to demonstrate structural bias and disproportionate effect by referring to comparative data from that State’s Prosecutor’s annual reports, which showed that prosecution rates for sexual violence cases were lower than those for homicide and physical assault. She also cited statistics from the Stígamót centre for victims of sexual abuse, presenting prosecution and conviction rates in cases handled by the NGO (para. 92).

This outcome reflects a broader pattern in the Court’s jurisprudence, where applicants are required to provide statistical or comparative evidence demonstrating discriminatory treatment (see A v. Croatia, para. 97). As has been argued elsewhere, this evidential threshold may place a disproportionate burden on victims of gender-based violence, who are often unable to access such data. While the Court referred to systemic concerns identified in international material (see GREVIO, paras. 309-315), it ultimately refrained from engaging with the discrimination dimension of the case. This is all the more paradoxical given that, although the Court had empirical evidence before it and expressly referred to it, it nonetheless required the applicant to adduce her own evidence in order to substantiate her complaint under Article 14. The result is a judgment that acknowledges structural shortcomings but addresses them solely through the lens of procedural obligations under Articles 3 and 8.

More specifically, although the GREVIO report cited by the Court referred to the prevalence of stereotypical and discriminatory attitudes among investigators and other actors within the criminal justice system in Georgia (identifying these as a significant barrier to justice for victims of gender-based violence, and even drawing on findings of the Public Defender of Georgia) the statistical and empirical material contained therein was not considered sufficient to establish, even on a prima facie basis, the existence of discriminatory treatment in the present case. This is particularly striking given that the information formed part of a report produced by another Council of Europe body.

This raises a broader concern. It is difficult to reconcile the Court’s insistence that the applicant adduce independent statistical evidence with the fact that relevant and credible material was already before it. Such an approach risks placing an unduly onerous evidentiary burden on victims, particularly in cases of sexual violence, where structural patterns of discrimination are well documented. Indeed, the disproportionate impact of sexual violence on women is widely recognised in international material (see, for example, UN, 2023), and forms part of the broader social context in which such claims arise. One must remember that the ECtHR does not operate in a vacuum. Against this background, a more victim-sensitive approach would require the Court to engage more fully with such contextual evidence. Where an applicant raises an arguable claim of discrimination under Article 14, supported by credible material, it may be more appropriate to shift the evidential burden to the respondent State to disprove the appearance of discriminatory treatment, rather than requiring the applicant to substantiate structural inequality through independent statistical proof.

Conclusion

Ultimately, X v. Georgia confirms that the effectiveness of Convention protection in cases of sexual violence depends not only on legislative design, but also on institutional practice. Indeed, for Convention rights to truly materialise a combination of both is necessary. The existence of an adequate legal framework by itself, did not prevent the investigation from becoming stagnant, nor did it ensure the meaningful participation of the applicant or protect her from secondary victimisation. As explained above, the violation of the applicant’s rights in this particular case arose from the cumulative effect of these failures. What emerges is a clear message: compliance with Articles 3 and 8 requires not only that States criminalise sexual abuse, but that they investigate such allegations with diligence, sensitivity, and a genuine willingness to establish the truth.

The broader implication is that the gap between law in the books and law in action remains a central concern in the Court’s jurisprudence on sexual violent cases. Bridging this gap will require more than legislative reform. It will require changes in investigative culture, including greater attention to the procedural position of victims and a more consistent application of trauma-informed practices. Without such changes, formally adequate systems risk producing outcomes that are substantively incompatible with the Convention, particularly in cases involving vulnerable victims such as children.