Sexual abuse
II. RELEVANT DOMESTIC LAW AND PRACTICE 38. Excerpts of the relevant legal provisions, as well as the relevant practice of the domestic courts, are detailed in M.G.C. v. Romania (no. 61495/11, §§ 30-37, 15 March 2016, not final ). 39. In addition, the Government submitted Decision no. 1037 of 5 April 2012 taken by the High Court of Cassation and Justice in the case of the sexual abuse of a fourteen- year - old girl by three men in conditions similar to the ones in the current case. The High Court upheld the defendants ’ conviction for rape, reasoning as follows: “In order to establish the facts, the court took into account the following evidence: the statements given by the victim, the defendant B.A., the witnesses ...; the statements given by P.D., R.C., and A.F. as defendants; the report on the examination carried out on the victim and on the material evidence as revealed in judicial photographs; the examination of the crime scene in the presence of the defendants accompanied by photographs and an orientation plan; the forensic medical certificate ...; the investigation conducted by the social services and the school report; the psychiatric forensic examination; the report about the examination of the crime scene in the presence of the witness P.D. with photographs; the polygraph test report ... Based on the evidence produced before the first - instance court, it has been correctly held that there had been no direct coercion of the victim. However, this situation is irrelevant for the verdict on the existence of the crime of rape. The defendant took advantage of the victim ’ s inability to defend herself, since any possibility of riposte was annihilated by the actions of the other aggressors [who had sexual intercourse with the victim before the defendant] ... The victim ’ s young age and psychological vulnerability [limited intellectual capacity] ... in the context of the events, namely during the night, in a secluded area, in a low temperature, the victim being scantily dressed, were all elements capable of placing her in a situation in which any opposition would have failed.” III. RELEVANT INTERNATIONAL MATERIAL 40. A detailed description of the relevant international material concerning sexual violence against children and women can be found in M. G. C. v. Romania (cited above, §§ 3 8- 46 ). 41. As regards people with disabilities, on 2 February 2005 the Committee of Ministers of the Council of Europe adopted the Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse. The Resolution recognizes that abuse against people with disabilities may also take the form of sexual abuse and exploitation, including rape, sexual aggression, indecent assault or indecent exposure. In this respect it reads as follows: “These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘ abuse ’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners. ... They should encourage cooperation between authorities and organisations in finding measures to prevent abuse, to improve detection and reporting of abuse, and to support the victims.” 42. The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society read as follows: “Persons with disabilities constitute a varied population group, but all have in common ... the need for additional safeguards in order to enjoy their rights to the full ... There are indicators that the rate of abuse and violence committed against persons with disabilities is considerably higher than the rate for the general population, and higher in women with disabilities ... While governments cannot guarantee that abuse will not happen they must do their utmost to establish protection and the strongest possible safeguards. .. Persons with disabilities who experience abuse or violence should have access to appropriate supports. They must have a system in which they can have sufficient confidence to report abuse and expect follow-up action, including individual support. Such systems require personnel who are skilled and qualified to detect and respond to situations of abuse.” 43. The United Nations Special Rapporteur on Disability stated the following in her 2006 report on the question of monitoring the situation of people with disabilities : “2. People with developmental disabilities are particularly vulnerable to human rights violations. Also, people with disabilities are rarely taken into account, they have no political voice and are often a sub group of already marginalized social groups, and therefore, have no power to influence governments. They encounter significant problems in accessing the judicial system to protect their rights or to seek remedies for violations; and their access to organizations that may protect their rights is generally limited. While non-disabled people need independent national and international bodies to protect their human rights, additional justifications exist for ensuring that people with disabilities and their rights be given special attention through independent national and international monitoring mechanisms.” 44. In the context of the Convention on the Rights of Persons with Disabilities the United Nations had published the following relevant findings: “Persons with disabilities are more likely to be victims of violence or rape, according to a 2004 British study, and less likely to obtain police intervention, legal protection or preventive care. Research indicates that violence against children with disabilities occurs at annual rates at least 1.7 times greater than for their non-disabled peers.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 45. The applicant complained that the Romanian authorities had not investigated her allegations of rape effectively and had breached their positive obligation to protect her from inhuman and degrading treatment. The relevant Convention provisions read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private ... life ... ” A. Admissibility 46. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 47. The applicant submitted that the authorities had not investigated her allegations of rape effectively. As there had been no physical evidence of assault, the criminal justice system had been more inclined to believe the perpetrators, showing no concern for the need to protect her as a minor. Discrepancies in the evidence had been disregarded and undue emphasis placed on the absence on her body of any signs of physical violence and on her lack of resistance to the perpetrators. The authorities failed to take into consideration her young age and her physical and psychological condition or the fact that six adult men had participated in her abuse. This approach intensified her feelings of humiliation, anguish and frustration without rendering an effective conviction. 48. The severe consequences of this situation on the applicant ’ s state of mind had been documented by the medical reports submitted during the domestic proceedings, as well as before the Court. 49. The Government contended that the investigation had been thorough and effective. All possible steps had been taken to gather the necessary evidence and to establish the facts, and in the absence of “direct” proof of rape, the national authorities had taken into consideration all the circumstances of the case. The authorities had not found it established that rape had been committed. The applicant had given conflicting testimony while the perpetrators had presented a constant position throughout the investigation. She had agreed to accompany the boys to the deserted house and had not asked for help. In addition, the difference in age between the applicant and the perpetrators was not significant. 50. The Government further argued that from the examples of domestic practice as already submitted in the case of M.G.C. v. Romania (cited above), it was obvious that the domestic courts were not requiring proof of physical violence in order to establish the existence of rape and that the victim ’ s resistance was not considered an important element in the analysis of such cases. When a victim was not young enough for the act to be automatically classified as rape, but was under the age of fifteen and gave her/his consent to the sexual act, the law provided that the victim ’ s will was not valid because of her young age and classified the act as the crime of sexual intercourse with a minor. The domestic courts have made a distinction between the two crimes, holding that the victim ’ s failure to defend herself/himself or to express her/his will must be established on a case-by-case basis. A fourteen-year-old girl might find herself unable to express her consent, whereas a much younger victim might have the capacity to defend herself and express her will. 2. The Court ’ s assessment (a) General principles 51. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see I.G. v. Moldova, no. 53519/07, § 40, 15 May 2012). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see M.C. v. Bulgaria, cited above, § 150 ). In the case of people in a vulnerable position, including people with disabilities, the Court held that the authorities must show particular vigilance and afford increased protection in view of the fact that such individuals ’ capacity or willingness to pursue a complaint will often be impaired (see B. v. Romania, no. 42390/07, § 50, 10 January 2012). 52. On that basis, the Court considers that States have a positive obligation inherent in Article 3 of the Convention to enact criminal-law provisions that effectively punish rape and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria, no. 39272/98, § 153, 4 December 2003 ). In addition, in accordance with contemporary standards and trends in this area, member States ’ positive obligations under Articles 3 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim (ibid., § 166). (b) Application of the above-mentioned principles to the present case 53. The Court notes that the authorities in the current case were confronted with two conflicting versions of the events. The applicant alleged that she had been raped on the evening of 13 January 2007. However, the six men involved in the incident claimed that she had consented to having sexual intercourse that evening. Therefore, the authorities ’ central task in this case was to determine whether the sexual intercourse had been consensual. 54. In similar cases the Court has already held that the presence of two irreconcilable versions of the facts obviously called for a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances (see M.C. v. Bulgaria, cited above, § 177). That could be done by questioning people known to the applicant and the perpetrators, such as friends, neighbours, teachers and others who could shed light on the trustworthiness of their statements or by seeking an opinion from a specialist psychologist (see I.G. v. Moldova, cited above, § 43). In this context, the authorities could also verify whether any reasons existed for the victim to make false accusations against the alleged perpetrators. However, the Court observes that none of the above was done at any stage of the investigation and trial in the current case. 55. The Court further observes that international materials on the situation of people with disabilities point out that the rate of abuse and violence committed against people with disabilities is considerably higher than the rate for the general population (see paragraphs 42-44 above). According to medical documents dated 15 February 2007 the applicant had been diagnosed with slight intellectual disability. In this context, the nature of the sexual abuse against her was such that the existence of useful detection and reporting mechanisms were fundamental to the effective implementation of the relevant criminal laws and to the applicant ’ s access to appropriate remedies (see, mutatis mutandis, Juppala v. Finland, no. 18620/03, § 42, 2 December 2008). Indeed the Court is of the view that failure to properly investigate or provide appropriate judicial response to complaints of sexual abuse against children or other vulnerable persons such as persons with intellectual disabilities creates a background of impunity which may be in breach of the State ’ s positive obligations under Article 3 of the Convention. 56. In such circumstances, the Court considers that the applicant ’ s intellectual disability, confirmed by medical documents, placed her in a heightened state of vulnerability and required both the investigative authorities and the domestic courts to show increased diligence in analysing the applicant ’ s statements (compare B v. Romania, cited above, § 57). Moreover, particular attention should have been also focused on analysing the validity of the applicant ’ s consent to the sexual acts in the light of her intellectual capacity. However, it appears that none of the personal circumstances of the applicant, such as her age and her mental and physical development or the circumstances in which the incident took place – at night, in cold weather, as well as the number of men who took part in it – were considered by the prosecutors or the judges deciding on this case. 57. The conclusions drawn by the prosecutor and the domestic courts appear to have been based only on the statements given by the alleged perpetrators, taken together with the fact that the applicant ’ s body showed no signs of violence and that she had not called for help or immediately told her girlfriends about the alleged abuse (see paragraphs 34 and 36 above). The Court notes in this context the multitude of investigative steps conducted in the example of domestic case-law submitted by the Government (see paragraph 39 above). 58. In view of the above elements, the Court considers that the authorities put undue emphasis on the absence of proof of resistance from the applicant and they failed to take a context - sensitive approach in the current case (see M.C. v. Bulgaria, cited above, § 182). The authorities ’ conduct was aggravated by the fact that no psychological evaluation was ever ordered by the domestic courts for the purposes of obtaining a specialist analysis of the applicant ’ s reactions from the point of view of her age. At the same time, the extensive medical evidence of the trauma suffered by the applicant following the incident at issue was not considered by the authorities at all. 59. Lastly, the Government claimed, among other arguments, that the applicant had given conflicting statements to the authorities. However, the Court notes that in the statements she gave throughout the investigation and trial, the applicant had merely clarified her initial statement, given immediately after the incident. The ones who appear to have re-considered their statements were M.C. and M.I.C. (see paragraphs 14, 22 and 26 above). Nevertheless, it is not clear from the case file whether the authorities took any steps to verify their credibility or the course of the events as described by the two men. 60. In view of the above, without expressing an opinion on the guilt of M.C., A.C.L. and V.F., the Court finds that the investigation of the applicant ’ s case fell short of the requirements inherent in the States ’ positive obligations to apply effectively a criminal-law system punishing all forms of rape and sexual abuse. 61. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the respondent State ’ s positive obligations under Article 3 of the Convention. In view of this conclusion, the Court also holds that no separate issue arises under Article 8 of the Convention (see I.G. v. Moldova, cited above, § 45). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 62. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 63. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage. 64. The Government submitted that the amount claimed was excessive. 65. The Court considers that the applicant must have suffered distress and psychological trauma resulting at least partly from the shortcomings in the authorities ’ approach in the present case. Making an assessment on an equitable basis, the Court awards her EUR 12 ,000 in respect of non-pecuniary damage. B. Costs and expenses 66. The applicant did not claim costs or expenses. Accordingly, the Court does not make any award under this head. C. Default interest 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention, finding that the investigation of the case had been deficient, notably on account of the Romanian State’s failure to effectively apply the criminal-law system for punishing all forms of rape and sexual abuse. The Court noted in particular that neither the prosecutors nor the judges deciding on the case had taken a context-sensitive approach, failing to take into account the applicant’s young age, her slight intellectual disability and the fact that the alleged rape, involving three men, had taken place at night in cold weather – all factors which had heightened her vulnerability. Indeed, particular attention should have been focused on analysing the validity of the applicant’s consent to the sexual acts in the light of her slight intellectual disability. International materials on the situation of people with disabilities pointed out that the rate of abuse and violence committed against people with disabilities was considerably higher than the rate for the general population. In that context, the nature of the sexual abuse against the applicant had been such that the existence of useful detection and reporting mechanisms had been fundamental to the effective implementation of the relevant criminal laws and to her access to appropriate remedies. Moreover, those shortcomings were aggravated by the fact that no psychological evaluation had ever been ordered by the national courts in order to obtain a specialist analysis of the applicant’s reactions in view of her young age. At the same time, the authorities had not considered at all the extensive medical evidence of the trauma she had suffered following the incident.