Information Note on the Court’s case-law 251

May 2021

J.L. v. Italy - 5671/16

Judgment 27.5.2021 [Section I]

Article 8

Positive obligations

Article 8-1

Respect for private life

“Secondary victimisation” of a victim of sexual assault on account of comments in the reasoning of the judgment that were guilt-inducing, moralising and conveyed sexist stereotypes : violation

Facts – Seven men were charged with the gang rape of the applicant. She alleged that the manner in which the criminal proceedings had been conducted, resulting in the acquittal of the defendants, had entailed a violation of her Article-8 rights and interests.

Law – Article 8: The Italian State possessed a legislative framework for protection of the rights of victims of sexual violence.

As to the effectiveness of the investigation, regard being had to the proceedings as a whole, the authorities had not been passive or failed to show the requisite diligence and promptness in assessing all of the circumstances of the case. Indeed, the applicant complained only about the conditions in which she had been questioned throughout the criminal proceedings and challenged the arguments on which the courts had based their decisions in this case.

(a) The interviews with the applicant : The judicial authorities had been faced with two conflicting versions of the events. The direct evidence available to them consisted essentially in the statements made by the applicant as a prosecution witness, which contained contradictions in terms of the report on the gynaecological examination and the findings of the numerous technical expert reports drawn up by the investigators.

In those circumstances, the interests of a fair trial required the defence to be given the opportunity to cross-examine the applicant, given that she was not a minor and was not in a situation of particular vulnerability which would have required additional protective measures. The presence of two irreconcilable versions of the facts had obviously called for a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances ( M.C. v. Bulgaria ).

However, the manner in which the presumed victim of sexual offences was questioned had to strike a fair balance between her personal integrity and dignity and the defendants’ defence rights. Cross-examination was not to be used as a means of intimidating or humiliating her ( Y. v. Slovenia ).

Firstly, at no point in the criminal proceedings had there been a direct confrontation between the applicant and her presumed assailants.

The transcripts of the questioning of the applicant during the preliminary investigations did not reveal a disrespectful or intimidating attitude on the part of the investigating authorities, or actions to discourage her or to steer the subsequent investigations in a particular direction. The questions that had been put to her were relevant and intended to obtain a reconstruction of events which would take account of her arguments and points of view and allow for the preparation of a thorough investigation file for the purpose of continuing the judicial proceedings. Although, given the circumstances, it had undoubtedly been a difficult experience for the applicant, it could not be considered that the manner of conducting the interviews during the investigation had exposed the applicant to unjustified trauma or a disproportionate interference with her intimate and private life.

With regard to the trial, the applicant had been questioned at two hearings. As the applicant was not a minor and had not requested that the trial be held in camera, the hearings had been held in public. Nonetheless, the president of the first-instance court had decided to prohibit the journalists present in the courtroom from filming them, for the specific purpose of protecting the applicant’s privacy. In addition, he had intervened on several occasions during the cross-examination, interrupting the defence lawyers when they asked the applicant redundant or personal questions or when they raised matters that were unrelated to the facts. He had also ordered short recesses so that she could regain her composure.

The proceedings as a whole had certainly been experienced by the applicant as a particularly distressing period, especially as she had been required to repeat her evidence on numerous occasions over a period of more than two years, in order to respond to the questions put, successively, by the investigators, the prosecutor’s office and eight defence lawyers. Moreover, the latter had not hesitated, in seeking to undermine the applicant’s credibility, to put personal questions to her, concerning her family life, her sexual orientation and her intimate choices; these were unrelated to the facts, which was firmly contrary not only to the principles of international law with regard to the protection of the rights of victims of sexual violence, but also to Italian criminal law. Moreover, in order to undermine the applicant’s credibility, the latter had not hesitated to put personal questions to her, concerning her family life, her sexual orientation and her intimate choices; these had sometimes been unrelated to the facts, which was completely contrary not only to the principles of international law with regard to the protection of the rights of victims of sexual violence, but also to Italian criminal law.

Nonetheless, given the attitude taken by the prosecutor and the president of the first-instance court, such as the measures taken by the latter to protect the applicant’s privacy with a view to preventing the defence lawyers from defaming or unnecessarily upsetting her during cross-examination, the public authorities in charge of the proceedings could not be considered responsible for the particularly distressing experience suffered by the applicant, and they had not failed to ensure that her personal integrity was duly protected during the trial.

(b) The content of the judicial decisions : With regard to the reasoning of the judicial decisions, the Court’s role was not to replace the domestic authorities or to decide on the alleged perpetrators’ criminal responsibility. It had to determine whether or not the domestic courts’ reasoning and the arguments used had resulted in an interference with the applicant’s right to respect for her private life and personal integrity, and whether there had been a violation of the positive obligations inherent in Article 8.

Several passages in the court of appeal’s judgment had breached the applicant’s rights under Article 8. In particular, the Court considered the references to the red underwear “shown” by the applicant in the course of the evening to be unjustified, as were the comments regarding her bisexuality, relationships and casual sexual relations prior to the events in question. Equally, the Court found inappropriate the considerations concerning the applicant’s “ambivalent attitude towards sex”. Equally, the Court considered that the assessment of the applicant’s decision to lodge a complaint about the events, which the court of appeal held to have resulted from a wish to “denounce” and to repudiate a “moment of fragility and weakness that was open to criticism”, had been regrettable and irrelevant, as was the reference to the applicant’s “non-linear life”.

The court of appeal’s arguments and considerations had been neither relevant for the assessment of the applicant’s credibility, a matter which could have been examined in the light of the numerous objective findings of the procedure, nor decisive in resolving the case.

The issue of the applicant’s credibility had been particularly crucial, and it could have been justified to refer to her previous relationships with one or other of the defendants or to aspects of her conduct over the evening in question. However, the applicant’s family situation, her relationships, her sexual orientation or her clothing choices, and the subject matter of her artistic and cultural activities, had not been relevant for assessing her credibility and the criminal liability of the defendants. Thus, it could not be considered that this interference with the applicant’s private life and image had been justified by the need to ensure that the accused could enjoy their defence rights.

The positive obligations to protect presumed victims of gender-based violence also imposed a duty to protect their image, dignity and private life, including through the non-disclosure of personal information and data that were unrelated to the facts. This obligation was moreover inherent in the judicial function and arose from national law as well as from various international texts. Accordingly, judges’ entitlement to express themselves freely in decisions, which was a manifestation of the judiciary’s discretionary powers and of the principle of judicial independence, was limited by the obligation to protect the image and private life of persons coming before the courts from any unjustified interference.

In addition, the United Nations Committee on the Elimination of Discrimination against Women and GREVIO had noted the persistence of stereotypes regarding the role of women and resistance in Italian society to the cause of gender equality. Equally, both these bodies had pointed out the low rates of criminal proceedings and convictions in Italy, which was simultaneously the cause of victims’ lack of confidence in the criminal justice system and the reason for the low rates of reporting such offences in that country. The language and arguments used by the court of appeal conveyed prejudices existing in Italian society regarding the role of women and were likely to be an obstacle to providing effective protection for the rights of victims of gender-based violence, in spite of a satisfactory legislative framework.

Criminal proceedings and penalties played a crucial role in the institutional response to gender-based violence and in combatting gender inequality. It was therefore essential that the judicial authorities avoided reproducing sexist stereotypes in court decisions, playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments that were capable of undermining victims’ trust in the justice system.

In consequence, while acknowledging that the national authorities had sought to ensure in the present case that the investigation and trial proceedings had been conducted in a manner compatible with their positive obligations under Article 8, the applicant’s rights and interests under Article 8 had not been adequately protected, given the content of the judgment delivered by the court of appeal. It followed that the national authorities had not protected the applicant from secondary victimisation throughout the proceedings as a whole, in which the wording of the judgment played a very important role, especially in view of its public character.

Consequently, the Court rejected the Government’s objection alleging the applicant’s lack of victim status.

Conclusion : violation (six votes to one).

Article 41: EUR 12,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also M.C. v. Bulgaria , 39272/98, 4 December 2003, Legal summary ; Y. v. Slovenia , 41107/10, 28 May 2015, Legal summary ; Carvalho Pinto de Sousa Morais v. Portugal , 17484/15, 25 July 2017, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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