Credit: ECtHR
On May 28, 2015 the European Court of Human Rights (ECtHR) released its judgment in Y v. Slovenia, holding that the State violated European Convention on Human Rights (the Convention) Article 3 (prohibition of inhuman or degrading treatment) with its prolonged investigation and criminal proceedings concerning the applicant’s complaint of sexual abuse, as well as Article 8 (right to respect for private and family life) when it did not provide adequate measures to protect her personal integrity during the proceedings. See ECtHR, Y v. Slovenia, no. 41107/10, Judgment of 28 May 2015. The Court took into consideration that the applicant was a minor when she was allegedly sexually assaulted by a family friend and exposed to humiliating and offensive questioning by the suspected offender. [ECtHR Press Release]
Facts and Domestic Procedure
The applicant, Y, was born in Ukraine in 1987 and moved to Slovenia with her sister and mother in 2000. The applicant alleged that when she was 14 years old, she was repeatedly sexually assaulted during a six-month period by a family friend, X, who was 55 years old at the time. In July 2002, Y’s mother filed a complaint with the police who then questioned Y. After unsuccessfully trying to obtain information over the course of a year about the investigation, Y’s mother complained to the Maribor District Prosecutor’s Office. In August 2003, the State Prosecutor’s Office lodged a request for a judicial investigation of X based on charges of sexual assault of a minor below the age of 15. In May 2005, the investigating judge issued a decision to open a criminal investigation concerning X. See Y v. Slovenia, 28 May 2015, paras. 5-7, 9-10, 12-15, 17.
When Y first testified in the Ljubljana District Court in October 2005, she described in detail the sexual activities she had been forced to engage in by X. At the third hearing in May 2008, Y “cried and said… the proceedings had been dragging on for several years during which she had been re-living the trauma.” Y then appealed under the Act on the Protection of the Right to a Trial without Undue Delay (2006 Act) to accelerate the proceedings. At the fourth hearing in September 2008, Y was personally cross-examined by her suspected offender, during which time she was asked more than a hundred questions, many of which were humiliating and offensive. As Y responded to the questions, X commented extensively on the accuracy of Y’s answers, even after the judge explained to X that he would have an opportunity to present his comments at the end of questioning. X asked for continuances for many of the hearing dates and was acquitted at the twelfth hearing in September 2009. See id. at paras. 18, 32-35, 49.
In December 2009 Y lodged a new appeal under the 2006 Act. Soon after, the state prosecutor filed an appeal, criticizing, among other things, the fact that the proceedings had been pending for eight years and that this aggravated Y’s trauma. The Maribor Higher Court rejected the appeal in May 2010. Subsequently, Y requested the Supreme State Prosecutor to file a request for the protection of legality, which is an extraordinary remedy. However, she was informed that this legal remedy was not available to her because it only concerns questions of law and not fact. See id. at paras. 54-56.
In February 2011 the government of Slovenia and Y reached an out-of-court settlement under the 2006 Act in the amount of 1,080 euros to cover all of Y’s pecuniary and non-pecuniary damages resulting from a violation of her right to a trial without undue delay in the previously mentioned criminal proceedings. Y also received 129.60 euros to cover the cost of the proceedings. See id. at para. 57.
On July 17, 2010 Y filed an application against Slovenia with the European Court of Human Rights, alleging violations of Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private and family life) of the Convention, arguing that the criminal proceedings concerning the sexual assaults against her had been unreasonably delayed, lacked impartiality, and exposed her to several traumatic experiences interfering with her personal integrity. See id. at para. 73.
Admissibility
Despite the State’s argument that Y failed to bring an action against the State for compensation of non-pecuniary damage, the Court found that Y had satisfied the requirement of exhausting domestic remedies. The Court found that an action for compensation against the State would not have offered the applicant effective relief with respect to the full range of her complaints, including the psychological trauma that resulted from the personal cross examination by X and the allegedly inappropriate questioning by the gynecology expert. See id. at paras. 76-80.
The Court also dismissed the State’s argument that Y could not raise the issue of the promptness of the investigation and trial, as a result of the out-of-court settlement that awarded Y compensation. The Court explained that this award of compensation did not address Article 3 and, additionally, that it was not clear that the settlement covered the damages incurred during delays at both the investigation and trial stage. See id. at paras. 81-84.
Based on this reasoning, the Court declared the case admissible.
Article 3: Prohibition of Inhuman or Degrading Treatment
Article 3 of the Convention states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court started by explaining the criteria that must be analyzed to determine whether Article 3 has been violated. First, the State’s positive obligation under Article 3 to investigate cases of ill-treatment, including sexual abuse, committed by private individuals has been established in previous cases. See ECtHR, M.C. v. Bulgaria, no. 39272/98, Judgment of 4 December 2003. Additionally, with respect to the requirements of an effective investigation, an analysis of Article 3 must consider whether authorities took reasonable steps to gather evidence, such as witness testimony and forensic evidence. Further, there is an implied requirement for promptness in this process. Finally, when allegations of a violation of Article 3 are made, the Court must apply an especially thorough level of scrutiny even if domestic proceedings and investigations have already taken place. See id. at paras. 74, 95-96.
The Court began by rejecting Y’s claim that X was acquitted because the domestic courts were biased against her as a result of her being Ukrainian, and thus made findings based on inaccurate assumptions and neglected to call important witnesses. The Court noted that while the testimony of one particular expert who concluded that X did not have the physical strength to overpower Y was decisive in the trial’s outcome, given that the first-instance court considered a significant amount of evidence in addition to both Y and X’s statements, and that the case partially rested on X’s word against Y’s word, it was not unreasonable for the Maribor District Court to refuse to admit additional evidence or to consider medical evidence of X’s disability. See id. at paras. 95-100.
The Court found that the State did violate Article 3 with respect to the long periods of inactivity during the investigation and criminal proceedings. The Court delineated several of these delays: the police did not submit the incident report of Y’s complaint to the State prosecutor’s office until one year after the investigation was finished and only then at the request of the prosecutor; the investigating judge then took twenty-one months to decide on this request; once the investigation was complete, the trial hearing was scheduled eight months after X’s indictment, which violated domestic procedural rules; the first hearing was not held until almost a year and a half after this indictment; and seven years passed from the time Y filed her complaint to the time that the first judgment was issued. The Court noted that the government had not provided any justification for the delays and, further, that regardless of whether the delays prejudiced the outcome of the legal proceedings, they were at odds with the requirement of promptness. On this basis, the Court held that the State violated its procedural obligations under Article 3. See id. at paras. 95-100.
Article 8: Right to Respect for Private and Family Life
Article 8 of the Convention states:
Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.
The Court found that the way the criminal proceedings concerning sexual abuse against Y were carried out constituted an Article 8 violation because of the lack of adequate measures taken to protect the applicant’s personal integrity. The Court discussed in detail the balance that must be struck between protecting the interests of the defense, particularly the right to call and cross-examine witnesses, while also protecting the rights of victims who are called upon to testify and witnesses. See id. at paras. 102-104.
The Court also emphasized that Article 8 not only protects individuals against arbitrary interference by public authorities, but also imposes positive obligations on the State to ensure that the right to respect for private life is ensured. See id. at paras. 101-103.
The Court went on to mention the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence which requires parties to the Convention to take legislative and other measures towards the goal of protecting a victim from intimidation and repeat victimization, enabling victims to be heard, and allowing victims to testify in the absence of the alleged perpetrator, in order to protect victims’ rights and interests. Additionally, the EU Directive Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime provides that interviews with victims are to be conducted without undue delay and that medical examinations are to be kept to a minimum. See id. at para. 104.
The Court noted that in this case, while measures were taken to prevent further traumatizing the applicant, including permitting Y to give her statement before the investigating judge in the defendant’s absence, excluding the public from the trial, and prohibiting some of the defendant’s questions during cross-examination, these measures were inadequate, especially because of the pre-existing relationship between the applicant and defendant, the nature of the alleged crimes, and the applicant’s age (she was a minor) when the alleged sexual abuse occurred. See id. at para. 114.
The Court based its finding of a violation on numerous factors, including: the fact that the questioning of Y took place at four hearings over the course of seven months, which were marked by long periods of inexplicable inactivity; the defendant personally cross-examined the applicant at two of the hearings, and included offensive and humiliating questions in his questioning; the defendant’s counsel failed to disqualify himself from the proceedings, despite the fact that Y allegedly consulted him about the sexual assaults before she had even spoken to the police; and the gynecology expert asked the applicant questions of an accusatory nature which exceeded the scope of examination. See id. at paras. 107-113.
Just Satisfaction under Article 41
Article 41 of the Convention states: “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.”
While the Court rejected Y’s claims for 30,000 euros in non-pecuniary damage for the psychological damage she claimed to have experienced as a result of the sexual assaults and secondary victimization during the criminal proceedings, the Court instead held that Slovenia had to pay 9,500 euros for non-pecuniary damage and 4,000 euros for the costs and expenses associated with the proceedings. See id. at 118-125.
Other Cases Concerning Minors and Violations of Both Article 3 and Article 8
The Court has found violations of Articles 3 and 8 in other cases involving minors. ECtHR Factsheet – Protection of Minors. For example, in M.C. v. Bulgaria, the Court found that the State violated Article 3 and Article 8 when there were defects in both the investigation and in the law itself, when a 14-year old applicant was raped by two men and the perpetrators were not prosecuted because it could not be established whether the applicant resisted or called for help. The Court noted that victims of sexual abuse, especially young girls, often fail to resist because of psychological reasons and that States have an obligation to prosecute any non-consensual sexual act, even where the victim has not physically resisted. See ECtHR, M.C. v. Bulgaria, no. 39272/98, Judgment of 4 December 2003.
In C.A.S. and C.S. v. Romania, too, the Court found that the State violated Article 3 and Article 8 when the authorities took five years to effectively investigate a complaint regarding the first applicant, a seven year-old boy who had been raped for four months. The Court recognized that States have an obligation to ensure the effective criminal investigation of cases involving violence against children. It also referred to Romania’s international obligations, including assisting in the recovery and social reintegration of victims, noting that the first applicant had not been provided with counseling nor was he accompanied by a qualified psychologist during the criminal proceedings. See ECtHR, C.A.S. and C.S. v.Romania, no. 26692/05, Judgment of 20 March 2012.
Additional Information
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