FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39272/98 by M.C. against Bulgaria

The European Court of Human Rights (First Section), sitting on 5 December 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 23 December 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a Bulgarian national who was born in 1980. She was represented before the Court by Mr Y. Grozev , a lawyer practising in Sofia. The respondent Government were represented by Mrs V. Djidjeva , co ‑ agent, Ministry of Justice.

A. The circumstances of the case

The applicant alleged that on 31 July and 1 August 1995, at the age of 14 years and ten months, she was raped by two men. The ensuing investigation was terminated with the conclusion that there had been insufficient proof of the applicant having been compelled to have sex.

The applicant alleged that Bulgarian law and practice in rape cases in general, and the allegedly ineffective investigation in her case in particular, resulted in violations of her Convention rights. The Government maintained, inter alia , that the complaints were manifestly ill-founded.

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

1. The events of the night of 31 July/1 August 1995

(a) the evening of 31 July

On 31 July 1995 the applicant and a friend of hers had been waiting to enter a disco bar in the town of K. when three men, P. (21 years old at the time), A. (20 years old at the time) and V.A. (his age not specified), arrived in a car owned by P. The applicant knew P. and A. She had met P. in the same disco bar and had danced with him once. A. was the older brother of a classmate of hers.

A. invited the applicant to go with him and his friends to a disco bar in a small town 17 km away. According to the applicant, she agreed on the condition that she would be back home before 11 p.m.

The three men then decided to go to a bar in another small town, some 20 km from K. where one or two of the group had small drinks. The applicant saw some friends with whom she had a short chat.

According to the applicant she repeatedly urged the others to go back as it was getting late.

At some time after midnight the group left and headed back to K. On the way they were briefly stopped and checked by traffic control police.

Thereafter A. suggested to stop for a swim at a nearby reservoir. According to the applicant, they went there despite her objections.

(b) events at the reservoir

In their statements to police made later, all four stated that at the reservoir the applicant had remained in the car, in the front passenger seat, saying that she was not interested in swimming. It was undisputed that the three men had headed towards the water and that soon thereafter P. had come back to the car and had sat in the front seat next to the applicant.

In her statements to the investigation authorities, the applicant submitted that P. had then pressed his body against hers, proposed her “to become friends” and started kissing her. The applicant had refused his advances and had asked him to leave. P. had persisted in kissing her while she had tried to push him back. He had then moved the car-seat back to a horizontal position, grabbed her hands and pressed them against her back. The applicant had been scared and at the same time embarrassed from the fact that she had put herself in such a situation. She had no strength to resist violently or to scream. Her efforts to push P. had been unsuccessful as he had been far stronger. P. had undressed her partially and had forced her into having sexual intercourse with him.

In her testimony, the applicant stated: “It was my first time and it hurt a lot. I felt sick and I wanted to throw up. I started crying”.

After P. had finished he had left the car. The applicant had remained inside, disoriented and crying.

As A. stated in his submissions to the police, when seeing him and V.A. after leaving the car, P. had told them that he had “shagged” the applicant.

According to P.’s statements, he had had sex with the applicant in the car with her full consent. He had started kissing her, she had responded, he had tried unsuccessfully to unbutton her jeans or belt, whereupon she had done that herself and had taken off her pants.

Shortly after these events, the three men returned to the car and the group drove off.

(c) the alleged second rape

The applicant later testified that after the first rape she had been very disturbed and had cried most of the time.

According to the version of the events proposed by P. and A. when later interrogated, the applicant had been in an excellent mood, had started flirting with A., which had irritated P., and had asked to go to a bar or a restaurant. The group had visited a restaurant where the applicant had briefly talked with a Ms T., the singer performing there. She had been at a table there with a Mr M.

Ms T., the singer, stated that on 1 August 1995 shortly after midnight, when she had been at a table with Mr M., the applicant, whom she knew vaguely, had approached and asked whether her group would perform during the forthcoming days. Ms T. recalled having seen at that moment a man waiting at the door of the restaurant. Having heard the answer to her question, the applicant had allegedly left. Ms T. stated that the applicant had appeared cheerful and that there had been nothing unusual in her behaviour.

Mr M. was also questioned by the police. He stated that he knew the applicant very well and that he did not remember having seen her that night.

The applicant disputed vehemently these statements, maintaining that there had been no visit to a restaurant and that she did not know Ms T. The applicant and her mother later accused Ms T. of perjury (see below).

Instead of returning to K., at around 3 a.m. the group went to a neighbouring town, where V.A.’s relatives had a house. A., V.A. and the applicant stepped out of the car. P., who was the owner of the car, drove off.

The three men and a baker, Mr S., called by them as a witness, later maintained that in the meantime there had been a short stop at Mr S.’s bakery. Mr S. allegedly had the key to the house.

Mr S. when interrogated stated that at about 2 a.m. he had given the key to V.A. and had seen the applicant waiting in the car in apparently good mood. Loud music had emanated from the car.

The applicant disputed that there had been any visit to a baker’s shop and accused the baker of perjury.

P., A. and V.A. submitted in their statements that they had decided to go to the house as the applicant had told them that she had quarrelled with her mother and would not return home.

The applicant stated to the police that she had felt helpless and in need of protection. As A. was the brother of her classmate, she had expected such protection from him and had followed him and V.A. into a room on the ground floor of the house.

There was one bed in the room and the applicant sat on it. The two men smoked and talked for a while. V.A. then left the room.

The applicant maintained that at that point A. had sat next to her, pushed her to lie on the bed, undressed her and forced her into having sex with him. The applicant had not had the strength to resist violently. She had only begged the man to stop. She later relayed in her statement:

“I started crying and asked him to stop ... He started caressing my breasts and sucking my neck ... At some point he took my jeans and my pants off with his feet. Then he spread my legs with his legs and forced his way into me... [after he finished] I started crying and I continued crying until some time in the morning when I fell asleep ... [V.A.] woke me up telling me that [A.] had gone for a car, to drive me back to K. I sat on the bed and started crying.”

A.’s position before the police was that he had had sex with the applicant with her full consent.

(d) the morning of 1 August 1995

On the following morning at around 7 a.m. the applicant’s mother found her daughter in the house of V.A.’s relatives.

The applicant’s mother testified that, having learned from neighbours that her daughter had been seen the previous evening with A., had been on her way to A.’s house when she had met V.A. on the street. V.A. had allegedly tried to mislead the applicant’s mother in an effort to gain time and warn A. However, she had insisted.

The applicant’s mother was shown to the house.

The applicant and her mother maintained in their submissions during the investigation that at that moment the applicant had told her mother that she had been raped. A. had been also there. He had told the applicant’s mother that “a truck driver” had had sex with her daughter the previous night.

According to A.’s version, the applicant and her mother had quarrelled, the applicant allegedly refusing to go with her and telling her to go away. A neighbour, apparently named as a witness by A. or V.A., stated that he had heard the quarrel and in particular the refusal of the applicant to leave with her mother and her words that nothing had happened to her. The applicant accused the witness of perjury.

The applicant and her mother went directly to the local hospital where they were directed to see a forensic doctor. The applicant was examined at about 4 p.m.

The doctor found that the hymen had been freshly torn. He also noted on the applicant’s neck grazing measuring 35/4 mm and four small bruises of oval shape.

2. Events between 1 and 11 August 1995

The applicant submitted that in the next several days she refused to talk to her mother about the incident. She gave no details and did not mention at all the second rape. According to the applicant, she lived in a conservative small town environment where virginity was considered to be a marriage asset. She felt ashamed of the fact that she had “failed to protect her virginity and of what people would say about it”.

On the first evening after the events, on 1 August 1995, P. visited the family of the applicant.

The applicant and her mother stated that that evening P. had begged for pardon and had claimed that he would marry the applicant when she would become of age. The applicant’s mother had considered that accepting the offer would be reasonable in the circumstances. This had influenced the initial behaviour of the applicant who had accepted her mother’s idea of minimising the damage.

On one of the following evenings the applicant went out with P. and some of his friends.

P. and V.A., the latter claiming that he had been with P. during the visit to the applicant’s house in the evening of 1 August 1995, stated that the applicant’s mother had told them that “each pleasure must be paid” and had tried to extort money from them.

P.’s grandmother also made a statement to the police. She asserted that on an unspecified date the applicant’s mother had visited her trying to extort money.

In respect of that visit and other relevant events, Mrs D., a neighbour and friend of the applicant’s mother, stated that the applicant’s mother had been very upset about the events and had agreed to her daughter going out with P. as he had affirmed that he loved the applicant. The applicant’s mother had nevertheless decided to talk to P.’s parents. On an unspecified date Mrs D. and another neighbour had approached the house of P.’s family but his grandmother had told them to go away, stating that the applicant had slept not only with P. but also with A. At that moment A. had arrived. Mrs D. had asked him whether it was true that he had slept with the applicant. He had confirmed, adding that he had the money and power to do as he pleased. Until then the applicant’s mother had not known about the second rape.

The applicant submitted that the visit of A.’s father on 8 August 1995 had provoked her outburst. She had then confided to her mother about the second rape.

On 10 August 1995 the applicant’s father returned home, after having been absent for several days. The family discussed the matter and decided to file a complaint.

The applicant’s mother did so on 11 August 1995.

3. The investigation

(a) initial police inquiry

On 11 August 1995 the applicant gave written deposition about the events of 31 July and 1 August. On the same day P. and A. were arrested and gave written statements. They claimed that the applicant had had sexual intercourse with them of her own will. The two men were released. Written statements were given also by V.A. and a neighbour to the house where the second alleged rape had taken place. On 25 August 1995 a police officer drew up a report and transferred the file to the competent prosecutor.

On 14 November 1995 the District Prosecutor opened criminal proceedings in respect of the alleged rape and transferred the case to an investigator. No charges were brought in the course of the proceedings.

Nothing was undertaken in the case between November 1995 and November 1996.

(b) proceedings upon the complaints by P. and A. alleging perjury

On 24 August 1995 P. and A. filed complaints with the District Prosecutor’s Office stating that the applicant and her mother had been harassing them through false public accusations.

On the basis of the complaints, on 28 August 1995 the District Prosecutor ordered a police inquiry. In September and October 1995 several persons were heard and gave written statements.

On 25 October 1995 a police officer drew up a report apparently crediting the allegations of P. and A. and disbelieving the version of the facts maintained by the applicant and her mother.

On 27 October 1995 the file was transmitted to the District Prosecutor’s Office which was competent to decide whether or not to open criminal proceedings against the applicant and her mother.

It appears that the matter was left lingering and no decision was taken.

(c) the resumed investigation in the rape case

Between 2 November and 9 December 1996 the investigator questioned the applicant, her mother and other witnesses. P. and A. were questioned as witnesses.

The applicant gave a detailed account of the facts, repeating that P. had overcome her resistance by pressing her against the car seat and twisting her hands, and that thereafter she had been in a state of shock and unable to resist A.

In his testimony P. claimed that the applicant had actively responded to his advances. He also affirmed that the applicant had spoken with Mr M. at the restaurant which they had allegedly visited after having had sex.

Both A. and P. stated, inter alia , that shortly after having had sex with P. at the reservoir, the applicant had started caressing A. in the car.

On 18 December 1996 the investigator completed his work on the case and drew up a report stating that there was no evidence demonstrating that P. and A. had used threats or violence and proposed to the prosecutor to terminate the criminal proceedings.

On 7 January 1997 the District Prosecutor ordered additional investigation. The order stated that the investigation had not been objective, thorough and complete.

On 16 January 1997 the investigator to whom the case had been referred appointed a psychiatrist and a psychologist to answer several questions. The experts were asked, inter alia , whether it was likely that the applicant would speak calmly with Ms T., the singer at the restaurant, and then listen to music in the car, if she had just been raped and whether it was probable that several days after the alleged rape the applicant would go out with the person who had raped her.

The experts found that, if there had indeed been a meeting between Ms T. and the applicant after the events at the reservoir, which was disputed by some of the witnesses, it was still possible that the applicant could have had a short exchange with Ms T. after having been raped. As to the applicant’s going out with P. several days after the events, the experts considered that this could be easily explained by the particular circumstances and the fact that she lived in a conservative social environment. The experts further found that the applicant was psychologically sound and that she had understood the meaning of the events. In view of her age at the time, however, she “could not assert a stable set of convictions”.

On 28 February 1997 the investigator concluded his work on the case and drew up a report again proposing the termination of the proceedings. The investigator considered that the experts’ opinion did not affect his earlier finding that there was no evidence demonstrating the use of force or threats.

On 17 March 1997 the District Prosecutor issued a decree terminating the criminal proceedings. He found inter alia that the use of force or threats had not been established beyond reasonable doubt. In particular, no resistance on her part or attempts to seek help from others had been established.

The applicant lodged consecutive appeals with the Regional Prosecutor’s Office and the Chief Public Prosecutor’s Office. The appeals were dismissed by decrees of 13 May and 24 June 1997 respectively. The prosecutors apparently credited the statements of A. and V. A. that the applicant had not shown any signs of distress after having had sex with P. at the reservoir, and the testimony of the three men and Ms T. that the latter had met the applicant and had spoken with her that night. It was further noted that the applicant had explained that the bruises on her neck had been caused by sucking. The decree of 13 May 1997 also stated:

“It is true that, as it can be seen from the report of the forensic psychiatric experts, the early age of the applicant and her lack of experience in life led to the fact that she was unable to assert a stable set of convictions, i.e. firmly to demonstrate her unwillingness to engage in a sexual contact. There can be no criminal act under section 152 §§ 1(2) and 3 of the Criminal Code however, unless the applicant was forced into having a sexual intercourse through physical force or threats. This presupposes resistance, but there is no evidence of resistance in the particular case. P. and A. could be held criminally responsible only if they understood that they were having sexual intercourse without the applicant’s consent and if they used force or made threats precisely with the aim to have a sexual intercourse against the applicant’s will. There is insufficient evidence to establish that the applicant demonstrated unwillingness to have a sexual intercourse and that P. and A. used threats or force.”

The decree of 24 June 1997 reiterated these findings and stated:

“What is decisive in the present case is that it has not been established beyond reasonable doubt that physical or psychological force had been used against the applicant and that the sexual intercourse had taken place against her will and despite her resistance. There are no traces of physical force such as bruises, torn clothes, etc...

It is true that it is unusual for a virgin girl under age to have twice within a short time sexual intercourse with two persons, but this fact alone is not conclusive of a criminal act in the absence of other evidence and in view of the impossibility to collect further evidence.”

(d) other proceedings

In June or July 1997 the applicant and her mother requested the opening of criminal proceedings against Ms T. and other witnesses, including V.A., alleging that they had committed perjury. Their statements in connection with the investigation into the rape of the applicant had allegedly been false.

On 14 July 1997 the same prosecutor of the District Prosecutor’s Office who had ordered the termination of the rape investigation dismissed the request, stating that it had been abusive, all facts having been clarified.

The applicant’s ensuing appeal was dismissed on 6 February 1998 by the Regional Prosecutor’s Office.

3. The expert opinion submitted by the applicant

In June 2001 the applicant submitted a written opinion by two Bulgarian experts, Doctor Svetlozar Vasilev , a psychiatrist, and Mr Valeri Ivanov , a psychologist, who had been asked by the applicant’s lawyer to comment on the case.

The experts stated, with reference to scientific publications in several countries, that two patterns of response by rape victims to their attacker were known: a violent physical resistance pattern and a “frozen-fright pattern” (also known as traumatic psychological infantilism syndrome). The latter was explained by the fact that any experience-based model of behaviour is inadequate when the victim is faced with the inevitability of rape. As a result the victim, terrorised, often adopts a passive response model of submission, characteristic of childhood, or seeks a psychological dissociation from the event, as if it was not happening to her.

The experts stated that all scientific publications they had studied indicated that the “frozen-fright pattern” prevailed. Further, they had conducted their own research for purposes of their written opinion in the present case. They had analysed all cases of young women, aged between 14 and 20, who had contacted two specialised treatment programs for victims of violence in Bulgaria during the period 1996-2001 declaring that they had been raped. Cases too different from that of the applicant had been excluded. As a result 25 cases had been identified, in 24 of which the victim had not resisted violently but had had a passive submission response.

B. Relevant domestic law and practice

In accordance with section 151 of the Penal Code sexual intercourse with a person younger than 14 years is punishable regardless of the attitude of the victim. A person under 14 thus cannot validly consent to a sexual intercourse. The attitude of the victim is likewise irrelevant in the case of persons older than 14 years if it has been established that the victim did not understand the meaning of what was happening.

Section 152 § 1 of the Penal Code defines rape as sexual intercourse with a woman without her consent if she is unable to defend herself, or if she has been compelled through the use of force or threats, or through bringing her to a state of defencelessness. Rape is generally punishable with two to eight years’ imprisonment. If the victim is younger than 16 years, the punishment is three to ten years’ imprisonment.

Section 157 § 1 of the Code provides for one to five years’ imprisonment in cases of forced sexual intercourse with a person of the same sex. In accordance with section 157 § 2 of the Code sexual intercourse with a person of the same sex is also punishable, regardless of the attitude of the victim, where the victim is under 16 years’ old. Thus, a person younger than 16 years cannot validly consent to a homosexual intercourse.

COMPLAINTS

The applicant complained, invoking Articles 3, 8 and 13 of the Convention, that Bulgarian law and practice did not provide effective protection of children against rape and sexual abuse, that the authorities had not investigated the events of 31 July and 1 August 1995 effectively, that the above amounted to a violation of the State’s positive obligations to protect the individual’s physical integrity and private life and that she did not have an effective remedy in this respect.

The applicant also raised a complaint under Article 14 of the Convention, claiming that she had been discriminated against in that she had allegedly been afforded less protection against rape than “homosexual children”. In particular, under section 157 § 2 of the Penal Code any sexual intercourse with a person of the same sex younger than 16 years was punishable, even if it was consensual, whereas a heterosexual intercourse with a person between 14 and 16 years was only punishable if it amounted to rape. As a result, in a situation analogous to the applicant’s a “homosexual child” of her age would have seen the perpetrators convicted in all circumstances, even if the use of force and threats had not been proven.

THE LAW

The applicant complained, relying on Articles 3, 8 and 13 of the Convention, of an alleged failure of the State to abide by its obligation to ensure a legal framework and practice effectively protecting minors against rape and sexual abuse and to investigate effectively the rape that she had been the victim of. Comparing the texts of section 157 § 2 and 152 of the Penal Code, the applicant also complained that the law provided better protection against rape to “homosexual children” than to “heterosexual children”.

The relevant provisions of the Convention read as follows:

Article 3

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

Article 8 § 1

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

1. The parties’ submissions

a) The Government

The Government submitted that the applicant had not exhausted all domestic remedies. In particular, the decision of the Chief Public Prosecutor’s Office of 24 June 1997 had been subject to appeal to a Deputy Chief Public Prosecutor and then to the Chief Public Prosecutor. Furthermore, as prosecutors’ decisions did not have a res judicata effect, the applicant could have continued submitting an unlimited number of appeals. She could have also brought a civil action for damages against the alleged perpetrators and/or State officials. As she had submitted an application to Strasbourg before exhausting these remedies, the applicant had in fact abused the right to petition.

The Government also maintained that the application had been introduced out of time as her first letter to the former Commission had been received on 6 January 1998.

As regards the substance of the complaints, the Government submitted that the investigation had been thorough and effective. All possible steps had been undertaken: seventeen persons had been interrogated, some of them repeatedly, psychiatry and psychology experts had been appointed, all aspects of the case had been explored. The Government therefore considered that the conclusion of the national authorities that P. and A. must have acted on the assumption of the applicant’s consent had been well-founded. In particular, the authorities had relied on all evidence about the events of 31 July/1 August 1995, including information about the behaviour of the applicant. Furthermore, the applicant had gone out with P. after the events and there had been allegations by witnesses that her mother had attempted to extort money from P. and A. in return of dropping the rape allegations.

In the Government’s submission the facts of the case did not, therefore, concern an issue of protection of a person’s integrity or ill-treatment. As a result, no positive obligations under Articles 3 or 8 of the Convention arose.

The Government also stated that domestic law indeed required proof of physical resistance in cases of rape. Moreover, under “the international practice, including in France” rape was only possible between strangers, whereas the applicant knew the alleged perpetrators. The above approach was perfectly logical and could not be seen as a breach of Articles 3 or 8 of the Convention.

Finally, the Government submitted that the applicant had at her disposal effective criminal and civil remedies, as required by Article 13.

On the basis of the above the Government invited the Court to reject the application.

b) The applicant

The applicant replied that she had exhausted the available criminal remedies by appealing to all levels of the prosecution authorities and that the civil remedies referred to by the Government were illusory or irrelevant. As regards the six months’ time-limit, the applicant stated, inter alia , that her first letter to the former Commission had been faxed and sent by registered mail on 23 December 1997.

As regards the substance of her complaints, the applicant, referring to the case-law of the Court, submitted that States have positive duties under Articles 3 and 8 of the Convention to ensure a legal framework capable of punishing rape and to investigate rape cases effectively, including where the perpetrator was not an agent of the State.

The applicant further considered that for the above positive duties to be discharged, domestic law and practice should not require, and, consequently, the investigation should not concentrate on, proof of physical resistance by the victim. All circumstances, including the age of the victim, and information about her psychological response, should be relevant by law and analysed in practice.

In arguing the above, the applicant relied on the written expert opinion submitted by her (emphasising that the majority of children or other young rape victims displayed passive psychological reactions of panic (see above)) and also on developments in international and comparative law as to the elements of the crime of rape.

In that latter respect the applicant stated that the international criminal tribunals for Rwanda and Former Yugoslavia had characterised as rape sexual penetrations “in circumstances which are coercive” or committed through “coercion or force or threat of force”. Further, an annex to the Statute of the International Criminal Court had stated that the coercion element of rape could be the result of “fear of violence, duress, detention, psychological oppression or abuse of power”. In the United States of America, many States had fully removed reference to physical resistance in rape legislation and others applied the standard of “reasonable resistance under the circumstances”, the latter approach being de facto prevailing in the assessment of evidence.

The applicant also stated that particularly strong protection against rape and sexual abuse should be provided to children.

The applicant considered that the Government’s account of the elements of the crime of rape in “the international practice” was untrue, untenable and contrary to basic human rights principles.

It was significant, however, that the Government had confirmed the criticised interpretation of the relevant domestic law by stating that evidence of physical resistance was required in rape cases. In the applicant’s view that reinforced her submission that the predominant practice in Bulgaria in rape cases tended to infer consent out of a lack of proof of physical resistance. Furthermore, by setting at 14 the consent age for sexual intercourse and at the same time limiting the prosecution of rape to cases of violent resistance by the victim, the authorities had left children insufficiently protected against rape.

Turning to her particular case, the applicant submitted that the prosecutors had put undue emphasis on the absence of marks of physical violence and had not taken into account the fact that at the age of 14 she had never taken important decisions herself, particularly under time pressure. The prosecutors had failed to have regard to the improbability of a 14 years’ old girl who had never had sexual intercourse consenting to sex with two men in a row.

Furthermore, the investigation had not been thorough and complete. The crucial issue of the timing of all moves of the three men and the applicant during the night in question - which could have shown that there had been no visit to a restaurant after the rape at the reservoir - had not been investigated. The contradiction in the testimonies of Ms T. and Mr M. had been disregarded. The police patrol who had stopped the group on their way to the reservoir had not been identified.

Moreover, the investigation had been biased. In particular, it had credited the testimony of the alleged perpetrators and of witnesses called by them and had at the same time disbelieved or ignored the testimony of other witnesses and the applicant’s account of the events.

In the applicant’s view, her clear and consistent testimony that she had begged P. to stop and had pushed him until he had twisted her arms, her account of the distress she had felt and about her resistance to the second rape, reasonable in the circumstances, seen in the context of all relevant facts, should have led to the conviction of the perpetrators if a correct interpretation of “rape”, consonant with the State’s positive obligations under Articles 3 and 8 of the Convention, had been applied.

2. The Court’s decision on admissibility

The Court, noting that the applicant appealed against the refusal to prosecute the alleged perpetrators to all levels of the prosecution authorities, finds that she has exhausted all relevant domestic remedies. In the context of her complaint that domestic law and practice did not protect her sufficiently against rape and sexual abuse, the civil remedies suggested by the Government cannot be considered effective and need not be tried.

The Court also finds that the application was introduced on 23 December 1997, less than six months following the decision of the Chief Public Prosecutor’s Office of 24 June 1997 and therefore within the time-limit under Article 35 § 1 of the Convention.

Finally, the Government’s allegation of abuse of the right of petition is groundless.

It follows that the above objections of the Government must be rejected.

Further, the Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President