THIRD SECTION

DECISION

Application no . 13119/08 A . G . against the Republic of Moldova

The European Court of Human Rights (Third Section), sitting on 19 March 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Luis López Guerra , Nona Tsotsoria , Johannes Silvis , Valeriu Griţco , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 14 March 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the decision to grant anonymity to the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms A.G., is a Moldovan national, who was born in 1988 and lives in Trebujeni . She was repres ented before the Court by Mr A. Briceac , Mr T. Cârna ț, Mr S. Urâtu and Mr E. Ciobanu , acting on behalf of the Helsinki Committee for Human Rights of Moldova.

2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant is a disabled person suffering from severe mental incapacity. The nature of her condition means that she requires full-time care from her mother. At the time of the events she was seventeen years and nine months old.

5. On 13 September 2006 the applicant followed a young man, G.P., who was sixteen years old at the time, out of her home. Two female neighbours saw them and asked where they were going. According to the neighbours, the applicant had replied that they were going to go somewhere to kiss and fondle. The neighbours decided to follow them to ensure that nothing happened to the applicant. The applicant and G.P. crossed the shallow part of a small river. The neighbours saw the applicant and G.P. first kiss under a tree and then disappear into some bushes near some cliffs. It was alleged that G.P had then assaulted the applicant and that she had let out a scream, but the neighbours did not see or hear anything. While they were watching the applicant and G.P., a man named V.D. also crossed the river and went the way the applicant and G.P. had gone. According to one of the applicant ’ s neighbours, who knew V.D., he had been taking a shortcut home to the neighbouring village. He was later seen by their village ’ s mayor. After crossing the river, V.D. passed by the bushes where the applicant and G.P. were, but he did not see them.

6. One of the neighbours ran off to inform the applicant ’ s parents. The other neighbour, who did not move from where she was, could not see the events that followed because of the bushes, but she kept shouting at G.P. to let the applicant go.

7. Soon afterwards, the applicant ’ s brother arrived and G.P. ran away. The applicant ’ s brother did not find the applicant because he had been looking in the wrong place. The applicant saw her neighbours on the other side of the river and joined them after being directed by them to a shallow point of the river. According to the neighbours, she had appeared scared and had said that G.P. had kissed her. They did not see any injuries on the applicant ’ s body and her clothes were wet from crossing the river. One of the neighbours took her home where, eventually, the applicant told her and her parents that G.P. had beaten her up.

8. A medical report dated 14 September 2006, which forms part of the case file, states that the applicant had been gang-raped. The circumstances in which that report was obtained are not clear.

9. According to a medical report dated 15 September 2006 the applicant had a freshly torn hymen and some minor bruising around her genitals. No other injuries were found.

10. On 18 September 2006 the applicant ’ s mother lodged a criminal complaint in which she accused G.P of raping her daughter. On the same date, the applicant ’ s stepfather told the police that the applicant had in fact been raped by two people, namely G.P. and V.D.

11. In a statement of 6 October 2006 to the prosecutor, the applicant submitted that G.P. had come to her house, beaten her up and taken her by force to a secluded place on the other side of the river, where he had raped her. She did not accuse anyone other than G.P. She made a similar statement on 20 October 2006.

12. In a statement of 20 October 2006 to the prosecutor, the applicant ’ s mother submitted that after being raped by G.P., the applicant looked as though she had been assaulted and her clothes had been soiled with blood and torn. The applicant ’ s mother did not accuse anyone other than G.P.

13. As to G.P. ’ s version of events, he initially denied having had sexual intercourse with the applicant; however, he later admitted that they had done so but stated that he had not forced her to. He also admitted having slapped her once across the face after intercourse because she had provoked him.

14. In a second medical report dated 20 October 2006 a doctor found that the applicant had suffered a blow to the head and had bruising around her nose.

15. On 7 December 2006 a prosecutor questioned V.D., who confirmed the applicant ’ s neighbours ’ statements that he had crossed the river on the evening of 13 September 2006 to take a shortcut to the neighbouring village. He submitted that he had not seen the applicant and G.P., but that he had seen the mayor.

16. The prosecutor also obtained a report from the school where G.P. was a pupil, according to which he was said to have had limited intellectual abilities.

17. Following an investigation, the prosecutor ’ s office concluded that G.P. had been the sole perpetrator of the rape and initiated criminal proceedings against him. The prosecution recommended a sentence of three years ’ imprisonment in a young offenders ’ institution.

18. In the trial before the first-instance court, the applicant ’ s mother claimed compensation in the amount of 3,000 Moldovan lei (MDL ‒ approximately 200 euros ) from G.P. She did not give any evidence to suggest that V.D. had been involved and did not seek to have him convicted. G.P. submitted that he had not forced the applicant to have sexual intercourse with him and that he had only slapped her because she had provoked him. The applicant stated that she had followed G.P. from her house to a secluded place on the other side of the river and that she had kissed him. G.P. had then told her to undress and when she had refused, he had punched her in the nose. After the rape, she had heard her brother calling to look for her, and G.P. had then run away. The applicant was specifically asked whether anyone else had been present and she replied that they had been alone. The applicant was assisted in court by her mother, who made a formal statement to the effect that the applicant had not been intimidated and was giving evidence in her own words.

19. On 2 February 2007 the Orhei District Court found G.P. guilty of rape and, in view of the fact that he was a minor, gave him a suspended sentence of three years ’ imprisonment with a probationary period of one year. He was also ordered to p ay the applicant damages of MDL 3,000, the same amount claimed by the applicant ’ s mother.

20. The applicant ’ s mother appealed against the decision and argued, inter alia , that the proceedings had been unfair because the court had tried to cover up the crime. She submitted that the court had not established the identity of the second person who had raped her daughter and that G.P. ’ s sentence had been too lenient. She also argued that the amount of compensation claimed by her at first instance had been too low because she had been misled by the prosecutor, who had informed her that that amount was the maximum which could be claimed. The applicant ’ s mother submitted a fresh claim for damages in the amount of MDL 100,000.

21. The prosecutor ’ s office also appealed against the judgment of the first-instance court on the grounds that the sentence was too lenient.

22. During the proceedings before the Court of Appeal, the applicant ’ s mother submitted a request for further witnesses to be examined; however, her request was refused on the grounds that they could not have brought anything new or significant to the case. One of the eyewitnesses could not be examined because she had since emigrated. The court simply read out the statements she had given during the investigation. On 5 June 2007 the Chişinău Court of Appeal dismissed both appeals. The court found, inter alia , that the sentence imposed on G.P. had exceeded the maximum limit set out in the Criminal Code for offences committed by minors. It was reduced to a suspended sentence of two years ’ imprisonment with a probationary period of two years.

23. The applicant ’ s mother lodged an appeal on points of law in which she contended that G.P. ’ s sentence had not been proportionate to the seriousness of the offence committed by him and that the amount of damages awarded had been too low. However, that appeal was dismissed by the Supreme Court of Justice on 31 October 2007.

B. Relevant domestic law

24. At the material time Article 171 of the Criminal Code provided that the offence of rape was punishable by a minimum of three and a maximum of five years ’ imprisonment. The same offence committed knowingly against a minor, or by two or more persons, was punishable by a minimum of five and a maximum of fifteen years ’ imprisonment.

25. Article 70 of the Criminal Code provided that where the offence was committed by a minor, the maximum sentence was to be halved.

26. Article 90 of the Criminal Code provided that a court may, taking into account the circumstances of the case and the characteristics of the accused, decide to impose a suspended sentence where the offence committed was an intentional offence punishable by a maximum of five years ’ imprisonment.

COMPLAINTS

27. The applicant complained under Articles 6 and 13 of the Convention that the criminal proceedings involving her rapist had been unfair. In particular, she complained that the prosecutor ’ s office had not investigated the case properly with regard to the second person who had raped her and that the courts had refused to examine her witnesses. She also argued that the criminal investigation had been defective and that the sentence imposed on G.P. had been too lenient.

THE LAW

28. The Court considers it more appropriate to examine this case under the provisions of Articles 3 and 8 of the Convention rather than under the Articles relied upon by the applicant. The Court reiterates in this connection that it is master of the characterisation to be given in law to the facts of the case and that it is not bound by the characterisation given by an applicant or by a government. Articles 3 and 8 of the Convention, in so far as relevant, read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1. has the right to respect for his private ... life ...”

29. The Government disagreed with the applicant and argued that the case had been investigated properly and that the State had effectively discharged its positive obligations under t he provisions of Articles 3 and 8 of the Convention. They argued, therefore, that the application was ill-founded. They further submitted that the applicant had never mentioned during the criminal proceedings that there had been a second person involved in the rape. The Government also contended that the applicant ’ s representatives had submitted false information to the Court. In particular, they referred to the fact that in the application form, the applicant ’ s representatives had suggested that the two eyewitnesses (the applicant ’ s neighbours) had told them that after being forced to cross the river, the applicant had been taken by G.P. to a secluded place where another person, V.D., had been waiting for them. Since this was a distortion of the information contained in the witnesses ’ statements, which had the potential to mislead the Court, the Government argued that the applicant ’ s representatives had acted in bad faith. They also referred to the fact that in the application form the applicant ’ s representatives had suggested that the medical report dated 15 September 2006 had stated that the applicant had suffered a blow to the head and had bruising around her nose, even though those injuries were only first mentioned in the second medical report dated 20 October 2006. The Government argued that the applicants ’ representatives had obtained a copy of the case file prior to submitting their application to the Court, and that they had wilfully omitted to attach a copy of it to their application form and had submitted misleading information. In view of the above-mentioned considerations, the Government submitted that the application was an abuse of process for the purposes of Article 35 § 3 of the Convention and asked the Court to declare it inadmissible on those grounds.

30. The applicant maintained her claims concerning the unfairness of the criminal proceedings, the ineffectiveness of the investigation into the circumstances of her rape and the leniency of the sentence imposed on G.P.

31. 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 A. v. the United Kingdom , 23 September 1998, § 22, Reports 1998-VI; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom , no. 33218/96, 26 November 2002).

32. 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).

33. 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, I.G. v. Moldova , no. 53519/07 , § 42, 15 May 2012 ) .

34. The Court agrees with the Government that the applicant ’ s representatives presented distorted information in their application form and that the case was communicated on the basis of such information. Nevertheless, since the applicant ’ s complaints are in any event manifestly ill-founded (see below), the Court does not consider it necessary to reach any conclusion on the issue whether or not the present application is an abuse of process.

35. The Court notes in the first place that the Moldovan criminal law contains provisions effectively punishing rape (see paragraph 24 above). In so far as the investigation into the allegations of rape made by the applicant and her mother is concerned, the Court does not see any flaws in the manner in which it was conducted. It appears from the material in the case file that both the applicant and her mother were questioned during the investigation phase and during the proceedings before the courts. All witnesses were similarly questioned during the investigation phase of the proceedings, and the most crucial of those witnesses were also examined by the courts where possible. It also appears from the case file that neither in the initial stages of the proceedings, nor during the trial did the applicant ’ s mother accuse V.D. of having taken part in the rape. Indeed, none of her statements contain any references to the fact that G.P. had had an accomplice. Moreover, the applicant accused only G.P. both during the investigation phase and during the court proceedings, while being assisted by her mother. The eyewitnesses stated that V.D. had merely passed by the scene of the rape. It was only after the conclusion of the trial that the applicant ’ s mother became dissatisfied with G.P. ’ s sentence and the amount of compensation awarded. She stated in her appeal that there had been a second person involved in the rape besides G.P., but she did not repeat that allegation in her appeal on points of law to the Supreme Court of Justice.

36. As far as the severity of G.P. ’ s sentence is concerned, the Court notes that it was within the limits set by the Criminal Code. Given the circumstances of the case, such as the age of the perpetrator and his personality, the manner in which the investigation was conducted and the decisions taken by the domestic courts, the Court considers that the respondent State fulfilled its obligations under Articles 3 and 8 of the Convention.

T he application is therefore manifestly ill-founded and inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President