Communicated on 4 January 2018

FOURTH SECTION

Application no. 1388/13 Z.E. against Hungary lodged on 20 December 2012

STATEMENT OF FACTS

The applicant, Ms Z. E ., is a Hungarian national, who was born in 1985 and lives in Budapest. She is represented before the Court by Mr P. Tuza , a lawyer practising in Budapest.

The circumstances of the case

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

On 4 May 2007 the applicant lodged a criminal complaint with the Budapest XIII district police department against unknown perpetrators. She alleged that at around 4.50 a.m. on the same day she had been driving home in her mother ’ s car in Budapest, when she had been stopped by a police car. Police officer Zs.F . approached her, while the other police officer, P.T. stayed close to her car. The two police officers had told her that since there had been problems with the car ’ s registration documents and she had not fastened her seatbelt she had to pay a fine. The applicant insisted that she had her documents with her at that time. According to the applicant, when she had informed the police officers that she had no cash on her, her documents had been taken away from her and she had been told to sit in the police car, where three other police officers had already been sitting (officers T.I., G.S.R. and G.B.). The other two officers had also got in the car; and the applicant had been forced to sit on the lap of one of the officers. Her car having been left behind, she had then been driven to a side street, some fifteen minutes away. When the police car had stopped, four of the police officers got out from the car together with the applicant. Subsequently, one of them had tried to force her to oral sex. Due to the applicant ’ s resistance this officer had stood down; but another police officer had raped her. Afterwards, she had been driven back to her car. The applicant further submitted that, at some point in time during the course of the incident, she had tried to call her friend Zs.K ., which the police officers had forbidden her, thus she had only managed to send him an SMS stating that she had been in trouble. She had also sent a text message to her friend ’ s flatmate, A.K., again stating that she had been in trouble. She also stated that following the incident the police officers had escorted her to her home, one of them sitting in the applicant ’ s car, next to her driving, and the others following her in the police car. The applicant had been forced by the police officer sitting in her car to give them 20,000 Hungarian forints, which she had done, once she had arrived home.

Following her statement, the applicant was requested to hand over her cloths which she had worn during the incident, to which she replied that she had given them to her mother, asking her to destroy them. According to the witness testimony of the police officer on duty subsequently given during the criminal trial, the applicant had not complained of any injuries at that point.

Following her complaint, the police officers in charge took the applicant to the street where she had been stopped by the accused officers, but she could not identify in which direction they had left the scene prior to the alleged assault.

The applicant was then transferred by the officers of the Budapest XIII district police department to the investigation division of the Budapest public prosecutor ’ s office, since the police had no jurisdiction to investigate the case. At the prosecutor ’ s office, the applicant was advised to go and see a gynaecologist. Still on 4 May 2007 the applicant was examined by her gynaecologist, Dr M.R. who found several fingerprint bruises on the applicant ’ s thighs. In his subsequent witness testimony he maintained that the colour of the bruises was blue and yellowish.

The applicant was heard again on the same day by the prosecutor ’ s office, where she maintained her previous submissions. She was advised to consider whether she wanted to lodge a private criminal complaint, which she subsequently did on 7 May 2007.

On 8 May 2007 the investigation division of the Budapest public prosecutor ’ s office made an attempt to identify the applicant ’ s car and the police car in question on the CCTV footage of a nearby shopping centre. The officers could not recognise the cars; nevertheless, the prosecutor ’ s office intended to proceed with the seizure of the recording, but addressed the relevant security company only some three weeks following the incident, when the recordings had already been deleted.

On 9 May 2007 the prosecutor ’ s office enquired with the Budapest VIII district police department asking for their CCTV recordings of the area, however on 15 May 2007 it was informed that the recordings had already been deleted.

On 16 May 2007 the applicant was heard again by the police. She maintained her previous testimony and added that during the incident she had also sent an SMS to the flatmate of her friend, asking for help.

On 17 May 2007 the prosecutor ’ s office identified the alleged perpetrators and questioned them. They all denied their involvement in the alleged criminal offences and stated that they had only accompanied the applicant to her home since she had not had her documents on her. On the same day an identity parade was carried out where the applicant had to identify the suspects from fifty-two persons presented to her.

On 18 and 23 May 2007 the police ordered the seizure of the police car implied in the incident and the police officers ’ uniforms.

The applicant w as heard again on 21 May and 30 August 2007.

The applicant ’ s acquaintances, Zs.K ., A.K. and Sz.H . were questioned, as well as the applicant ’ s aunt, mother and sister. Zs.K . and the applicant ’ s family members confirmed that the applicant had injuries on h er thighs after 4 May 2007, and that these had not been visible prior to the incident. Sz.H ., who had been driving with the applicant that night prior to the incident stated – in the context of the question as to whether the applicant had had her wallet and documents with her – that they had stopped several times and the applicant had made various payments at petrol stations.

On 23 May 2007 the applicant was examined by a forensic expert psychologist. According to her report, there had been contradictions in the applicant ’ s testimonies, which made it likely that she had made up the story. The applicant ’ s lawyer was not informed about the examination and was not present.

On 23 August 2007 the applicant ’ s lawyer commissioned another forensic psychologist expert opinion, in which it was stated with certainty that the applicant had been victim of sexual violence. She reached the conclusion that the applicant ’ s statements had been credible and reliable.

On 7 June 2007 a forensic expert gynaecologist appointed by the police issued a report in which he stated that the injuries on the applicant ’ s thighs, as documented in the medical report of 4 May, must have occurred prior to that date. He mainly relied on the statement of Dr M.R., given to the police after the presentation of his original medical report, according to which the injuries had been of blue and yellow colour.

Another gynaecologist expert retained by the applicant ’ s lawyer reached the conclusion that the injuries suffered by the applicant had clearly been the proof of sexual intercourse. This expert refuted the suggestion that the i njuries had occurred prior to 4 May.

To resolve the contradictions between the two testimonies, the Medical Research Council issued an opinion in the case, in which it was found that the differences between the two medical assessments, in particular the age of the injuries, were due to the unprofessional manner in which the medical report was drafted by Dr M.R. It was further observed that the injuries could have occurred either because of the physical force applied against the applicant or in another way.

Moreover, three DNA analyses were carried out by forensic experts examining the car of the applicant, the police car as well as the clothes and the underwear worn by the applicant and the police officers. None of the analyses could substantiate or refute the applicant ’ s allegations. According to the opinions commissioned by the applicant ’ s lawyer from independent experts, the DNA testing carried out by the forensic experts was out-dated and inappropriate.

The investigation authorities also heard a number of the applicant ’ s previous acquaintances, including high school classmates, who put into question the applicant ’ s credibility, stating that they had hearsay information that the applicant had previously accused other persons of rape.

Several passers-by were also questioned, but none of them could provide information about the incident, besides confirming that there had been police checks on that day.

The applicant suggested that the fingerprints on the purse containing her documents be examined, which request was dismissed by the prosecutor ’ s office.

On 7 December 2007 the investigation division of the Budapest public prosecutor ’ s office discontinued the investigation against the five police officers. It found that the applicant ’ s statements had been contradictory and could not be confirmed by the witnesses who had passed by the scene that night. In any event, based on the information retained from the mobile phone cell information, it was impossible that the incident had happened as described by the applicant. The decision stated that there was no explanation why the police officers had accompanied the applicant home, but there was no proof beyond reasonable doubt that they had committed the offence of bribery.

The applicant ’ s lawyer complained about the decision. He argued in particular that the investigation authority should have commissioned a new DNA analysis and resolved the contradictions between the witness testimonies.

The complaint was dismissed by the Budapest chief prosecutor ’ s office, acting as a second-instance authority, on 16 January 2008. The decision emphasised that the applicant had not been consistent as to which police officer committed the sexual assault and could not describe where the incident had taken place. It also reiterated the finding contained in the first-instance decision that the mobile phone cell information had excluded the applicant ’ s version of the events, thus the sexual assault could not have been committed at the time, at the place and in the manner suggested by the applicant. As regards the issue of bribery, the second-instance authority concluded that there was no proof beyond reasonable doubt.

The applicant, acting as a substitute private prosecutor, filed an indictment against the five police officers involved in the incident alleging sexual assault, deprivation of liberty and bribery.

In the ensuing proceedings, the court heard the psychologist experts w ho examined the applicant on 23 May and 20 July 2007, Dr M.R. who examined the applicant on 4 May 2007, the two expert gynaecologists involved in the investigation, a representative of the Medical Research Council, the experts carrying out the DNA analysis, the IT and technical experts, and an additional expert concerning the mobile phone calls. A confrontation was held by the court between the psychologist experts. The psychologist report commissioned by the applicant ’ s lawyer was admitted only as documentary evidence, since the psychologist, its author, had meanwhile renounced her expert accreditation. Several witnesses, including the applicant ’ s relatives, her acquaintances and the passers-by were also questioned during the trial.

On 8 March 2010 the Budapest Regional Court rendered a judgment and acquitted all five accused of all charges, for the lack of conclusive evidence. The applicant ’ s lawyer appealed, highlighting procedural errors in the conduct of the criminal proceedings and submitting a further request for evidence taking. He challenged in particular the probative value of the medical report of Dr M.R. and that of the forensic psychologist.

On 20 June 2012 the Budapest Court of Appeal overturned the first-instance judgment and discontinued the criminal proceedings in respect of the charges of bribery, since the applicant had no legal standing to pursue private prosecution concerning this criminal offence. It upheld the first-instance judgment as regards the charges of sexual assault, dismissing the applicant ’ s request for specific evidence-taking measures and her complaint about the alleged procedural errors in the first-instance proceedings.

COMPLAINTS

The applicant complains under Articles 3, 6, 8 and 13 of the Convention that the authorities did not investigate the events of 4 May 2007 effectively. In her view, this state of affairs amounted to a violation of the State ’ s positive obligations to protect the individual ’ s physical integrity and private life and to provide a fair trial and effective remedies in this respect.

QUESTION TO THE PARTIES

Has there been a violation of the applicant s ’ rights in breach of Articles 3 and/or 8 of the Convention in view of the applicants ’ complaint concerning the alleged sexual abuse by police officers? In particular, was the investigation concerning the applicant ’ s allegations of sexual abuse and the ensuing proceedings against the police officers involved effective as required by the positive obligations inher ent in Article 3 and/or Article 8 of the Convention (see, among others, M.C. v. Bulgaria , no. 39272/98, §§ 153, 166 and 184, ECHR 2003 ‑ XII)?