CEDH · CASELAW;CLIN;ENG — 27 février 2025

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Cyprus - 40733/22 Judgment 27.2.2025 [Section I] Article 3 Effective investigation Positive obligations   Article 8 Positive obligations Investigative and prosecutorial authorities’ response to rape allegations fell short of the State’s positive obligation to apply relevant criminal provisions in practice through effective investigation and prosecution: violation Facts – On 13   July 2019, the applicant, X, a British national, on holiday in Ayia Napa met a man, S.Y., an Israeli national, who had been staying at the same hotel as her. X alleged that in the early hours of the 17   July 2019 she was raped by S.Y. and his friends (in total twelve persons) who had been invited by the former into the hotel room they were in. The police took two statements from X on the day of the incident. On 27   July 2019 X provided a third, supplementary statement. In those statements X confirmed she had had consensual sex with S.Y. on two occasions prior to the alleged rape, although on both occasions his friends had persisted in entering the room despite being asked to leave. Following six hours of investigation on the evening of 27   July 2019, X signed a retraction statement saying her account of events had been false. The same day the Chief Investigator suggested the case be classified as ‘unsubstantiated’. X, on account of the retraction, was charged and convicted of the offence of public mischief and sentenced to four months’ imprisonment, suspended for three years. Upon appeal the Supreme Court overturned her conviction and acquitted her, finding the retraction had not been made under conditions with the necessary safeguards. In March 2022 the Attorney General’s Office re-examined the decision to discontinue the investigation. The review was conducted as if X’s retraction statement had not been made and the decision was made not to reopen the case. Law – Articles 3 and 8: The Court observed the existence of a legislative framework to protect the rights of victims of sexual violence. Specifically, domestic law criminalised rape making direct reference to the absence of consent, while the state had further enacted legislation concerning the rights, support and protection of victims of crime. The police had begun investigating X’s complaint without undue delay. They had traced the suspects quickly, secured warrants, collected DNA samples and other evidence and had not delayed in interviewing witnesses. The speediness of the investigation was not therefore at issue. Nevertheless, the case had been marked by a series of shortcomings on behalf of the investigative authorities, the prosecutorial authorities and the first instance court. At the heart of the case was the overly hasty termination of the investigation into X’s allegations of rape, prompted by her retraction of her initial statements and the immediate initiation of criminal proceedings against X herself, culminating in her conviction for public mischief. However, the Supreme Court overturned that conviction on appeal, having identified some of the failures in the investigation and deficiencies in the first-instance court’s assessment. While the Supreme Court’s judgment amounted to an acknowledgment of flaws at the initial stage of the investigation and a lack of thoroughness, the Court, having joined the issue to the merits and examined it of its own motion, considered that X had not lost her victim status under Article   34. The Supreme Court’s findings could not satisfy the requirement of an effective investigation, because those initial flaws had had an impact on the effectiveness of the entire investigation. Moreover, despite those findings, counsel for the Attorney General, when reviewing the decision to discontinue the investigation, had endorsed the approach followed by both the Chief Investigator and the first instance court in her assessment, with the main exception that she had not taken into account X’s retraction statement. In addition, X had made additional complaints as to the effectiveness of the investigation. Therefore, she could still claim to be a victim of the violation complained of under Article   34. The Court reiterated that investigating authorities are under an obligation to take whatever steps they reasonably can to secure all available evidence about the incident they are investigating. It had been for the authorities to explore all the facts and decide on the basis of all the surrounding circumstances. There had been a number of investigative shortcomings, such as not obtaining sufficient forensic and witness evidence, which could not be considered isolated omissions. However, particular importance was attached to the failure of the authorities to examine whether there had been consent. Neither the Chief Investigator nor the counsel for the Attorney General in the ensuing re-assessment of the investigation file had engaged in any meaningful examination of the evidence which could signify a lack of consent. No mention had been made that X had consumed alcohol or of the traces of cocaine in her urine and how that could have affected her capacity to consent. Neither had her express disagreement with the suggestion of having sex with some of the suspects been addressed, the fact that at least one of them had felt offended by her, nor the fact the suspects had shown little regard for her wish for privacy on all three occasions when they had persisted in entering the room despite being expressly asked to leave. In addition, no inquiry was made as to the steps the suspects took to ensure that X consented to sex on 17   July 2019 but there had been testimony to the effect that some of the suspects had hoped and expected that they would have sex with her, assuming that they would be able to do so. Moreover, the police and subsequently the investigator had taken the suspects’ statements that no rape had taken place at face value despite testimony that S.Y. had said he would arrange for his friends to have sex with X; that certain suspects had crudely expressed their intention to have sex with X on 17   July 2019; that blood had been found on a condom, on the hygiene pad worn by X and in her vagina; that there had been bruises on X’s body and scratches on S.Y.’s body; that there had been no prior relationship between X and most of the other suspects; and X’s behaviour after the incident. The authorities had also made no mention of the inconsistencies in the suspects’ statements. It appeared that the authorities’ disinclination to pursue the investigation further or to initiate criminal proceedings had been based on X’s sexual liberty and conduct. Her credibility appeared to have been assessed through prejudicial gender stereotypes and victim-blaming attitudes. By focusing on X’s prior conduct, the authorities seemed to suggest that because she had allegedly participated in group sexual activities before, she would not have refused to engage in such activities on the day of the alleged rape. The Court reiterated that circumstances concerning the victim’s behaviour or personality could not excuse the authorities from the obligation to carry out an effective investigation. The Court further observed a selective and inconsistent approach to the assessment of evidence, indicative of bias. While the decision of the Chief Investigator to discontinue the investigation and the decision of the Attorney General not to reopen it had been largely based on alleged inconsistencies in X’s statements, they had failed to consider the circumstances under which those statements had been made and the psychological effect that the alleged rape might have had on her at the time, or that she could have still be intoxicated by alcohol, cocaine or affected by sedatives administered to her by a friend. It was also not clear whether X had been given time to sleep or rest between the alleged rape and her first and second statements. X, who at the time was eighteen years old and a foreigner, alone in Cyprus, had only been referred to a psychologist two days after the alleged rape. Although she had been interviewed by a female police officer for her first two statements, that had been done in the absence of a lawyer, a psychologist, or the social welfare services. Following six hours of investigation in the evening of 27   July 2019, X had retracted her complaint after midnight. In those circumstances there was force in her argument that it had been the long and repeated interviews which had led to the retraction. The above, together with the numerous interviews X had had to undergo repeating her statement to the authorities, also had 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. The Court observed that the present case revealed certain biases concerning women in Cyprus which had impeded the effective protection of X’s rights as a victim of gender-based violence and which, if not reversed, ran the risk of creating a background of impunity, discouraging victims’ trust in the criminal justice system, despite the existence of a satisfactory legislative framework. Having regard to the numerous shortcomings identified, the investigative and prosecutorial authorities’ response to X’s allegations of rape had fallen short of the State’s positive obligation to apply the relevant criminal provisions in practice through effective investigation and prosecution. Conclusion : violation (unanimously). Article   41: EUR 20,000 in respect of non-pecuniary damage. (See M.C. v.   Bulgaria , 39272/98, 4   December 2003, Legal Summary ; M.G.C. v.   Romania , 61495/11 , 15   March 2016; X v.   Greece , 38588/21 , 13   February 2024)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .