Communicated on 14 November 2017

SECOND SECTION

Application no. 35765/08 H.A. against Turkey lodged on 4 July 2008

SUBJECT MATTER OF THE CASE

The application concerns the alleged rape of the applicant ’ s daughter, a minor at the material time, by a man some twenty years her senior in a village in Şı rnak .

The case mainly raises issues under Articles 3, 8 and 14 of the Convention as to whether the domestic law and practice in force at the material time concerning the rape and/or sexual abuse of minors, and the investigation into such incidents, secured the observance by the respondent State of its positive obligations to provide effective legal protection against such conduct.

QUESTIONS tO THE PARTIES

1. Did the applicant have standing to bring the present application before the Court in the name and on behalf of her daughter M.A., who was the direct victim of the alleged rape (see, for instance, Ä°lhan v. Turkey [GC], no. 22277/93, §§ 49-55, ECHR 2000 ‑ VII; Lambert and Others v. France [GC], no. 46043/14, §§ 89-106, ECHR 2015 (extracts); see also Y.F. v. Turkey , no. 4209/94, § 31, ECHR 2003 ‑ IX)?

2. Did the domestic law and practice in force at the material time in Turkey provide effective protection against rape and sexual abuse of minors as required under Articles 3 and/or 8 of the Convention (see, for instance, M.C. v. Bulgaria , no. 39272/98, ECHR 2003 ‑ XII)?

3. Did the domestic judicial authorities investigate the applicant ’ s daughter ’ s allegations of rape in an effective manner, and in observance of the best interests of the child, as required under Articles 3 and/or 8 of the Convention (see, for instance, C.A.S. and C.S. v. Romania , no. 26692/05, § 82, 20 March 2012, and G.U. v. Turkey , no. 16143/10, 18 October 2016)? In particular;

i. Did the domestic courts sufficiently assess, in the context of the surrounding circumstances, whether the victim, a minor, had given her consent voluntarily to sexual intercourse, by her own free will, with a man twenty years her senior (see, for instance, M.C. , cited above, § 163)?

ii. Did the domestic courts sufficiently explore the possible reasons which could have explained the victim ’ s hesitations in reporting the abuse and in her description of the facts, having particular regard to the vulnerability of young people, the special psychological factors involved in cases concerning violent sexual abuse of minors, and the possible repercussions of making an accusation in the society in which the victim lives (see, for instance, C.A.S. and C.S. v. Romania , no. 26692/05, § 81, 20 March 2012)?

iii. Was the applicant ’ s daughter subjected to an examination by an expert in clinical psychology or other specialist experienced in working with minors who are victims of sexual assault?

iv. Did the domestic courts sufficiently consider the credibility of the statements made by the alleged perpetrator, which they later used in his favour, having regard to the fact that the perpetrator changed his statements with the emergence of new evidence?

v. Having regard to the interests at stake, have the criminal proceedings at issue been conducted with the necessary diligence and promptness?

4. According to the domestic law and practice in force at the material time, was the proof of rape contingent on evidence of the use of physical force and evidence of physical resistance? In practice, did courts infer consent from insufficient proof of physical resistance?

5. Did the alleged lack of protection of the applicant ’ s daughter against sexual violence amount to a breach of Article 14 of the Convention, in conjunction with Articles 3 and/or 8 of the Convention, as argued by the applicant (see, mutatis mutandis , Opuz v. Turkey , no. 33401/02, §§ 191 and 200, ECHR 2009)?