Rape and sexual abuse
II. RELEVANT DOMESTIC LAW 20. The relevant parts of the Criminal Code read at the material time as follows: Article 171. Rape “Rape, or sexual intercourse committed by use of physical or psychological compulsion on [a] person or by taking advantage of the victim ’ s impossibility to defend herself or to freely consent, is punishable with imprisonment from 3 to 5 years. Rape: committed repeatedly ..., is punishable with imprisonment from 5 to 15 years. ...” 21. The relevant parts of the Code of Criminal Procedure read at the material time as follows: Article 274. Initiation of criminal proceedings “After receiving a criminal complaint from which a reasonable suspicion that an offence has been perpetrated transpires, the criminal investigation organ or the prosecutor shall initiate criminal proceedings within 30 days ... ” 22. According to Articles 298, 299 and 313 of the Code of Criminal Procedure a complaint about ill-treatment is to be lodged with the Prosecutor ’ s Office and the decision of that office is to be challenged before the hierarchically superior Prosecutor ’ s Office. The decision of the latter body can be challenged before an investigation judge. The explanatory judgments of the Plenary Supreme Court No. 7 and No. 8 dated 4 April 2005 and 30 October 2009 respectively, confirm that this is the remedy to be used in cases concerning ill-treatment and torture. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 23. The applicant complained that the Moldovan authorities had not investigated her allegations of rape effectively. In her view, that had amounted to a violation of the State ’ s positive obligations to protect the individual ’ s physical integrity and private life and to provide effective remedies in this respect. Articles 3, 8 and 13 of the Convention, on which the applicant relied, 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 24. The Government recalled that in Ipati v. the Republic of Moldova (no. 55408/07, 5 February 2013), a case concerning the applicant ’ s ill-treatment by police, the Court dismissed their objection of non-exhaustion of domestic remedies based on the applicant ’ s failure to lodge an appeal with the investigating judge. Based on that decision, the Government considered that it was the Court ’ s ruling that the appeals before the investigating judges in such cases were not to be considered an effective remedy and thus, that they were not to be pursued. Accordingly, the Government submitted that the six-month time limit for lodging the present application should have been calculated from 22 August 2011 and not from 23 November 2011, i.e. the date of the decision issued by the investigating judge. They asked the Court to declare the application inadmissible for failure to observe the six-month time-limit. 25. The applicant disagreed with the Government and argued that she had complied with the six-month time limit as required by Article 35 § 1 of the Convention. 26. The Court recalls that in Ipati, it rejected the Government ’ s non-exhaustion objection as the investigation had lasted over five years and the applicant had already appealed to the investigation judge three times without any success before applying to the Court. It was a decision which was based on the specific facts of that case and it was not the Court ’ s intention to declare that the appeals to investigation judges lodged in accordance with Article 313 of the Code of Criminal Procedure were not an effective remedy. This is confirmed by the fact that in a subsequent decision in the case of Cuprianov v. Moldova (( dec. ) 34115/09, 26 March 2013), the Court declared inadmissible the applicant ’ s complaint about ill-treatment under Article 3 of the Convention on account of his failure to lodge an appeal with the investigation judge. 27. The Court therefore concludes that the application cannot be declared inadmissible for failure to observe the six-month time-limit, accordingly, the Government ’ s objection is dismissed. The Court further notes that the complaints under Articles 3 and 8 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 28. The applicant submitted that the domestic authorities had failed to effectively assess the circumstances of the case and had therefore fallen short of the positive obligation to enact criminal law provisions effectively punishing sexual assault. In her view, the investigation conducted by the prosecutors was ineffective and flawed with many shortcomings. 29. The Government submitted that the prosecutors did not initiate criminal proceedings after receiving the applicant ’ s complaint about the rape, because there was no prima facia evidence that she had been a victim of rape. In their view the medical reports did not provide such evidence. Moreover, according the Government, the prosecutors did everything that could have reasonably been done in order to elucidate the circumstances of the case. 30. 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 Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001 ‑ V; and A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). 31. In a number of cases, Article 3 of the Convention was found to give rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998-VIII). Such a positive obligation cannot be considered, in principle, to be limited solely to cases of ill-treatment by State agents (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002-I). 32. On that basis, the Court considers that States have positive obligations inherent in Article 3 of the Convention to enact criminal ‑ law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, §§ 149-153, ECHR 2003 ‑ XII ). 33. Turning to the facts of the present case, the Court notes that the investigation conducted by the Moldovan prosecutors was flawed in a number of ways. In the first place, the prosecutors refused to initiate criminal proceedings after receiving the applicant ’ s complaint, apparently treating her allegations as not serious enough. That happened in spite of the findings in the initial medical reports to the effect that the applicant had signs of violence on her body and traces of semen in her vagina and the alleged rapist had scratches on his neck characteristic of rape (see paragraphs 9 and 10 above). The Court finds it difficult to accept the Government ’ s position that there had been no sufficient prima facie evidence which would warrant the initiation of criminal proceedings in accordance with Article 274 of the Criminal Procedure Code. 34. The Court further notes that on 6 August 2010, the Prosecutor ’ s Office dismissed the applicant ’ s complaint without hearing any witnesses and/or conducting any kind of investigation. That decision was quashed by an investigation judge on 7 February 2011 on the grounds that the investigation had been incomplete and superficial. 35. In the re-opened investigation, the Prosecutor ’ s Office obtained new medical reports, heard O.P. ’ s parents and one of his friends. No confrontation between the applicant and O.P. was conducted and no other witnesses were heard. The prosecutor accepted without any reserve O.P. ’ s version of the facts according to which the applicant had not been forced to come with him on the evening of 10 May 2010. He did not question her neighbours or the employees of a petrol station who, according to the applicant, witnessed her attempts to escape from O.P. The investigator did not attempt to find an explanation to O.P. ’ s divergent statements given to the forensic experts and to the prosecutor as to whether he had had intercourse with the applicant on 10 May 2010 (see paragraphs 10 and 11 above). The applicant informed the prosecutor that on 11 May 2010 she had gone to a hospital and had been diagnosed with concussion as a result of the assault. That information was not verified during the investigation. And finally, by the time the prosecutor had decided that O.P. had committed a minor offence, the time-limit for such proceedings had expired. 36. In view of the above, the Court, without expressing an opinion on the guilt of O.P., finds that the investigation of the applicant ’ s case fell short of the requirements inherent in the State ’ s positive obligations to effectively investigate and punish rape and sexual abuse. The Court thus finds that in the present case there has been a violation of the respondent State ’ s positive obligations under Article 3 of the Convention. In view of this conclusion it also holds that no separate issue arises under Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 37. The applicant contended that she had not had any effective remedies in respect of the breach of her rights guaranteed by Articles 3 and 8 of the Convention and that there had therefore been a breach of Article 13, which reads as follows: Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 38. The Court notes that this complaint 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 39. The applicant submitted that she had not had any criminal-law remedies because the criminal investigation had been ineffective, and as a result of that ineffectiveness, she had not had any effective civil remedies by which to claim compensation from O.P. 40. The Government submitted that there had been no violation of Article 13 in the present case. 41. In so far as the first part of the applicants ’ complaint is concerned, namely that she did not have effective criminal-law remedies in respect of her allegation of rape, the Court notes that it does not raise any separate issue from that examined under Article 3. 42. As to the other part of the complaint, the Court considers that, given the inadequacy of the investigation into the circumstances of the applicant ’ s allegation of rape, a civil claim relying on the same facts and allegations would not have had any prospect of success. Accordingly, the Court considers that it has not been shown that effective remedies existed enabling the applicant to claim compensation for the alleged rape (see, Timus and Tarus v. the Republic of Moldova, no. 70077/11, § 64, 15 October 2013 ). There has therefore been a violation of Article 13 taken in conjunction with Article 3 of the Convention. No separate issue arises under Article 13 taken in conjunction with Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. 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 44. The applicant claimed 90,000 euros (EUR) in respect of non-pecuniary damage. She submitted that she had suffered anguish and distress. 45. The Government disputed the amount claimed by the applicant and argued that it was excessive. 46. Having regard to the violations found above, the Court considers that an award of just satisfaction for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000. B. Costs and expenses 47. The applicant also claimed EUR 5,607 for costs and expenses incurred before the Court. She submitted relevant documents in support of her claims. 48. The Government objected and argued that the amount was excessive. 49. The Court awards EUR 2,000 for costs and expenses. C. Default interest 50. 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 procedural violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the investigation of the applicant’s case had fallen short of the requirements inherent in the State’s positive obligations to effectively investigate and punish all forms of rape and sexual abuse. It also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention taken in conjunction with Article 3 in so far as the applicant’s complaint about the lack of civil remedies was concerned.