CEDH · CASELAW;CLIN;ENG — 4 décembre 2003

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Bulgaria - 39272/98 Judgment 4.12.2003 [Section I] Article 3 Positive obligations Adequacy of protection provided by Bulgarian law for victim of alleged rape: violation Article 8 Positive obligations Bulgarian law provided insufficient protection to victim of an alleged act of rape: violation Facts : The applicant was fourteen years and ten months old when she claims to have been raped by two men, A. and P., aged 20 and 21. On the evening of 31 July 1995, she was in town with a friend when she met the two men (whom she knew) and a third man, V.A. She accepted their invitation to go to a disco bar in a nearby town. Later in the evening, although she urged them to go back, the men proposed to go swimming at a reservoir. Once at the reservoir, two of them left the car, and P. forced the applicant to have sexual intercourse. After that, they headed towards the house of V.A.’s relatives in another neighbouring town, where she alleges to have been forced to have sex with A. The next morning, when her mother found her at V.A.’s house, she took her to hospital. The medical examiner found that the applicant’s hymen had been freshly torn and that there were four small oval-shaped bruises and grazing on her neck. At this stage the applicant had only confided in her mother that she had been raped once. Some days later, when the she confided about the second rape, the family filed a complaint. The District Prosecutor ordered a police enquiry. P. and A. disputed the version of the events given by the applicant and maintained that they had had sex with the applicant with her full consent. They named as a witness a singer at a restaurant where they had allegedly been after the incident at the reservoir, who testified that she had spoken to the applicant and found nothing unusual in her behaviour. However, another person that had been with the singer at the restaurant that night, who was also questioned by the police, did not remember having seen the applicant. A neighbour of V.A.’s testified that he had heard the applicant quarrel with her mother on the morning of 1 August, refusing to leave with her. The investigation concluded that there was no evidence that P. and A. had used threats or violence to have sex with the applicant. The District Prosecutor was not convinced of the objectivity of the investigation and ordered an expert opinion by psychiatrists. Their report underlined that the applicant was likely to have been overwhelmed by an internal conflict between a natural sexual interest and a sense that the act was reprehensible, which had reduced her ability to defend herself. Despite this report, the District Prosecutor terminated the criminal proceedings against P. and A. as there was insufficient proof that the applicant had been compelled to have sex. The applicant complained that the Bulgarian legal framework and practice, by requiring proof of physical resistance by the victim of a rape case, was inadequate and left unpunished certain acts of rape. She also complained that the investigation had not been thorough and complete. Law: Articles 3 and 8 (positive obligations) – In accordance with modern standards in comparative and international law in the area of legislation against rape, a State’s positive obligations under Articles 3 and 8 require the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim. The Court’s task was limited to examining whether the impugned legislation and its application to the present case, together with the alleged shortcomings in the investigation, had such significant flaws as to amount to a breach of the respondent State’s positive obligations under Articles 3 and 8, but it could not replace the assessment of the facts by the domestic authorities or decide on the alleged criminal responsibility of the perpetrators. The Bulgarian authorities had been faced with a difficult task as they were confronted with two conflicting versions of the events and little “direct” evidence. The efforts by the investigator and prosecutors in the present case were not to be under-estimated but, nonetheless, they failed to assess in a context-sensitive manner the credibility of the conflicting statements and did not make use of all the possibilities of establishing and verifying the surrounding circumstances. In particular, the contradictory statements by witnesses were not confronted, nor was a precise timing of the events established. The approach of the investigation and its conclusions gave undue emphasis to the lack of “direct” proof of rape, such as violence, thus elevating the lack of “resistance” by the applicant to the status of the defining element of the offence. This approach was restrictive as the investigation should have been centred on the issue of “non-consent”. Conclusion: violation (unanimously) Article 41 – The Court awarded the applicant 8,000 euros in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes