CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 novembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 16 December 2024   FOURTH SECTION Application no. 38044/23 R.P.A. against Romania lodged on 12 October 2023 communicated on 25 November 2024 SUBJECT MATTER OF THE CASE The application concerns allegations of the authorities’ failure to satisfy their positive obligations under Article 8 of the Convention, in the light of the acquittal of the perpetrator of non-consensual groping. On 15 September 2022, the applicant pressed charges for sexual assault ( agresiune sexuală ) against an unidentified male perpetrator, who had followed her that evening from the public bus up into the lobby of her block of flats. She complained that, after being warned by the applicant not to follow her, the man suddenly lifted her skirt and grabbed her bottom taking advantage of her turning her back to him when calling the lift. The man ran away when the applicant cried in shock. On the basis of the forensic and documentary evidence collected during the investigation stage and during the trial, including statements by the applicant, her husband (who pursued and confronted the perpetrator immediately after the incident) and the perpetrator who had eventually been identified, on 17 January 2023 the Bucharest District Court sentenced the latter to 4 year and 9 months in prison for sexual assault (Article 219 § 1 of the Criminal Code). The District Court ruled that the case at hand concerned an act of sexual nature (concerning sexual organs, in order to obtain sexual satisfaction) against the applicant who, in the circumstances, felt coerced and vulnerable. The District Court noted that the act was perpetrated in an isolated space, at a late hour, in the absence of any other person, by an individual whom the applicant – feeling under threat by a stranger and without alternative options – had warned not to follow her into the lift. When establishing the penalty, the District Court also took into account that the perpetrator was a post-execution reoffender of sexual assault (five past such acts, one of which a tentative, committed in a similar manner). It noted that the applicant didn’t wish to lodge a claim for damages within the criminal proceedings. By a final decision rendered on 16 June 2023, the Bucharest Court of Appeal (“Court of Appeal”) quashed the District Court judgment and acquitted the accused. While confirming the certainty that the impugned facts have been committed as described by the applicant, the Court of Appeal considered that the material element of the offence of sexual assault was missing. Referring to the relevant provision, the Court of Appeal held that the material element of this offence consists in an act, other than rape, that is accomplished in order to satisfy the sexual instinct, and noted that it was irrelevant whether such acts were normal or abnormal manifestations of the latter. For the Court of Appeal, the perpetrator’s behaviour, although reprehensible, did not have a criminal connotation, as the mere gesture of grabbing of the applicant’s bottom without the victim’s consent, by surprise, could not be qualified as the offence of sexual assault. Nor could it be accepted, in the opinion of the Court of Appeal, that in circumstances such as in this case which involved the victim’s surprise, the applicant – an adult who managed to pursue the perpetrator – had been vulnerable or under physical or moral coercion. The applicant complains under Article 8 of the Convention about the failure of the relevant domestic criminal law and practice to effectively punish the non-consensual act of sexual nature and about the fact that, in her case, the domestic courts did not place those acts in their context and did not take into account the perpetrator’s previous record. She also complains about the absence of programmes for sexual offenders and the lack of an obligation for the domestic authorities to assess and impose such programmes, where appropriate. QUESTIONS TO THE PARTIES 1.     Did the competent authorities discharge their obligation under Article   8 of the Convention to provide the applicant with effective protection against the type of act of sexual nature to which she fell victim? In particular, is the domestic law and practice in Romania sufficiently clear in order to offer effective protection against non-consensual acts of sexual nature?   2.     Having regard to the international standards that are guiding the Court, in particular the definition of “sexual violence” by the Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”, Article 36), and the Bucharest Court of Appeal’s assessment that appears to rely on the absence of coercion without denying the lack of consent in the present case, did the Romanian legal system, in the circumstances of this case, effectively “prevent, prosecute and eliminate” violence against women, notably non-consensual acts of sexual nature (compare with, mutatis mutandis , X v. Greece , no. 38588/21, §§   72 and 85, 13 February 2024, and Vučković v. Croatia , no. 15798/20, §   57, 12 December 2023)?   The parties are invited to provide the Court with the relevant legal provisions and examples of relevant domestic case-law.   3.     Having regard to the positive obligations of States inherent in Article   8 of the Convention to carry out an effective investigation of acts of sexual nature, were the judicial proceedings in the present case in breach of the above-mentioned Article (see, for example, A, B and C v. Latvia , no.   30808/11, 31 March 2016; C. v. Romania , no.   47358/20, 30 August 2022; and, mutatis mutandis , Sandra Janković v. Croatia , no. 38478/05, 5   March 2009)?