Communicated on 16 December 2014

THIRD SECTION

Application no. 49089/10 E. B . against Romania lodged on 11 August 2010

STATEMENT OF FACTS

The applicant, Ms E. B. , is a Romanian national, who was born in 1973 and lives in the village of Mica ( Mureş county ). She is represented before the Court by C. Schwab, a lawyer practising in Târgu Mureş .

A. The circumstances of the case

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

1. Events on the 20 May 2008

Around 7 p.m. the applicant was walking on her way home from the village of Bahna ( Mureş county), where she had helped her husband the entire day in the fields. Near the village of Căpâlna , she was approached by an unknown individual, who was identified later as T.F.S., who started walking alongside her and who tried unsuccessfully to engage in a conversation.

At some point, they met two men. One of them, whom the applicant knew by sight as I.L., stopped T.F.S., and asked him if he wanted to accompany him in order to finalise a transaction over a horse. T.F.S. replied to him that he would join him later.

After the two men went away, T.F.S. continued walking alongside the applicant. He eventually offered the applicant money and a mobile phone if she accepted to have oral sex with him. She refused saying that she was not “that kind of person” and added that she had a man at home. T.F.S. continued following her and, as the applicant was telling him that he was wasting his time, as she would not accept the proposal, he grabbed her by the right arm and by the neck and dragged her to a nearby cemetery. The applicant alleged that she was threatened by T.F.S. to obey, otherwise, he would use the knife he had in his possession. He told her to undress and lie on the grass. In a state of shock, the applicant obeyed. T.F.S. allegedly bit her on the lower part of the stomach and raped her. He then continued masturbating himself over the applicant. After he finished, he threatened her again that if she would tell anyone about the incident he would look for her and seek revenge.

The applicant went straight to the police station. Nearby, she met with a certain I.S., who used to be the landlady of a local police officer. The applicant told I.S. that she had been raped by an individual wearing black clothes. I.S. advised the applicant not to tell anyone about what had happened, as she would make a fool of herself in front of the whole village, since she had no witnesses. The applicant nevertheless knocked on the window of the police station. As no one answered, she went home and showered. Later that evening she talked to her mother and to a friend, A.B., explaining them what had happened. Next day, when her husband came home from the field where he had spent the night, she told him what had happened. She then filed a criminal complaint.

2. The criminal complaint and the investigation

On 21 May 2008 in the morning the applicant filed a criminal complaint with the local police. She stressed that she had been forced and threatened with a knife to have sexual intercourse. She also complained that she feared that the aggressor might have given her a venereal infection, since she had noticed blue spots on his penis. She also submitted a medical certificate indicating that she was suffering of oligophrenia ( oligofrenie gradul I ).

The same day the police interrogated I.L. and T.F.S.

I.L. confirmed he had seen the applicant the day before, and that he had not noticed anything special in her behaviour. The witness also provided the name of the accused, T.F.S.

T.F.S. admitted having made a proposal for sexual intercourse to the applicant, but claimed that the applicant ’ s reply was that she was afraid that her husband would find out. T.F.S. indicated that the act had taken place on the side of the road but claimed that it had been consensual.

Having checked T.F.S. ’ s criminal record, the police found out that he had been previously convicted for the rape of a minor.

On 22 May 2008 the applicant went to the Târgu-Mureş Institute of Forensic Medicine ( Institutul de Medicina Legala ) for examination. The examination concluded that the applicant had two bruises on her right arm consistent with a compression between two hard surfaces ( mecanism de comprimare intre doua planuri dure ), resulting in temporary disability of 2 to 3 days. It also stated that the applicant did not have any injury, “specific in cases of rape”, at the level of her genital area.

The applicant also had a blood test performed in search of a possible syphilis transmission. The applicant claimed that the result of that test proved positive.

On 9 July 2008 the police interrogated I.S, who confirmed that she had seen the applicant coming to the police station on 20 May 2008 in order to file a complaint for rape and that she had seen the applicant leaving, as the police station was closed.

The applicant claims that during the investigation, the police did not inform her, as required by Law no. 211 of 27 May 2004, that she was entitled to see a psychological counsellor or that she was entitled to have legal aid in relation to her criminal complaint and to obtain non pecuniary damages. She further claims that they did not provide her with detailed information as to her procedural rights as a victim.

3. The prosecutors ’ decisions

On 21 January 2009 the Târnăveni prosecutor attached to Târnăveni First Instance Court decided not to start criminal proceedings as provided for by Article 10 § 1 d) of the Code on Criminal Procedure, relying on the following elements: I.L. had testified that he did not notice anything unusual when he met the applicant and T.F.S. on 20 May, prior to the sexual intercourse; the applicant had failed to ask for help although, prior to the sexual intercourse, she and T.F.S. must have passed in front of a petrol station on their way to the village; the medical examination revealed no injury in the genital area; although the medical examination revealed bruises on the applicant ’ s right arm, no indication was provided as to when they had been caused.

On 22 February 2009 the applicant contested the prosecutor ’ s decision to the Prosecutor ’ s Office attached to Târnăveni District Court. She reiterated that T.F.S. had threatened her with a knife and that was why she complied with his orders to undress. Furthermore, she claimed that she had been advised by the police to withdraw her criminal complaint. She reminded that she had attached to her complaint a medical certificate indicating that she was suffering from oligophrenia and from depression.

On 24 February 2009 the prosecutor attached to Târnăveni District Court rejected the applicant ’ s contestation, having found that the evidence available did not suggest that physical force had been used by T.F.S. in order to have a sexual intercourse with the applicant. The prosecutor relied firstly on the fact that I.L. did not notice anything unusual at the applicant or T.F.S. when he had met them, and secondly on the absence of injury in the applicant ’ s genital area.

On 20 March 2009 the applicant, represented by her husband, appealed to District Court Târnăveni . In her submissions, she stressed that T.F.S. had admitted having used force. She claimed, in particular, that during the re-enactment of the scene, when she was showing the police officer how T.F.S. had grabbed her by the neck, the latter had stated furiously that he had not grabbed her “that hard”. The applicant stated that T.F.S. constantly threatened her that he would use the knife he had with him. She further complained that she had been advised by the police to withdraw her complaint because she had no witnesses and because “she was asking for it” and in any event “it did her good”.

4. Domestic courts ’ decisions

On 6 May 2009 the District Court Târnăveni allowed the applicant ’ s appeal and referred the file back to the prosecution with a view to opening criminal proceedings against T.F.S. The court found that the prosecutor ’ s conclusion to the effect that the sexual act was consensual was unsupported by evidence. It further found that the lack of reference in the forensic certificate to the date of the applicant ’ s injuries should have led the prosecutor to investigate further in order to redress this omission. The court also stated that the absence of injury in the applicant ’ s genital area was consistent with the allegation of threat. Finally, the court criticized the prosecutor ’ s failure to consider the fact that the injuries to the applicant ’ s arm were consistent with a forceful grabbing.

The court also ordered the prosecutor to proceed to the following acts : request a psychiatric examination in order to determine whether, having regard to applicant ’ s diagnosis of oligophrenia , she was able to react or to fight back; the re-interrogation of I.S. in order to clarify the physical state of the applicant when the latter had met the witness; a confrontation between the applicant and T.F.S. with a view to clarifying the contradictions in their testimonies; and a socio-moral assessment of the applicant to ascertain her behaviour in society and her level of credibility in the community. Finally, the court advised the prosecution to take account of the fact that T.F.S. had been previously convicted on account of rape.

On 15 October 2009 the prosecutor attached to the Târnăveni First Instance Court filed an appeal against the court ’ s decision of 6 May 2009, on the grounds that the evidence which the District Court had requested was irrelevant. In particular, he stressed that he was the only one entitled by law to decide whether to open or not criminal proceedings, and that, in the present case, his refusal to open criminal proceedings was based on Article 10 § 1 d) of the Romanian Criminal Code, having regard to the lack of coercion, as an element defining the rape, upon the victim. He also submitted that the authorities had no obligation whatsoever to certify the applicant ’ s mental condition or her socio-moral behavior. Finally, the prosecutor considered that neither the re-interrogation of I.S. nor a confrontation between the applicant and T.F.S. were necessary.

On 11 February 2010 Mureş County Court found for the prosecution. The applicant was represented by an ex officio lawyer, appointed upon request of the applicant ’ s husband. The court stated in particular that it was unnecessary to re-interrogate S.I., since in her first statement she had not indicated having seen the applicant in a state of discomfort whilst confessing to her that she had been raped. The court further found that the forensic examination was not supporting the applicant ’ s allegations, since, on the one hand, it did not reveal injuries to the genital area, and on the other hand, the two injuries to the applicant ’ s arm had not been dated. It finally found both the conduct of a psychiatric assessment and the confrontation between the applicant and T.F.S to be unnecessary, and deemed a socio-moral assessment to be irrelevant.

B. Relevant domestic law and practice

Criminal Code

Article 197 of the Criminal Code in force at the time of the events until 1 February 2014 defined rape as:

“ any sexual act, of any nature, with a person of a different or same sex who was compelled or by taking profit of his/her impossibility to defend herself or to express her will”

Article 218 of the Criminal Code in force as from 1 February 2014 defines rape as:

“sexual intercourse, oral or anal sexual act with a person who was compelled, put into a state of impossibility to defend him/herself or to express his/her will or by taking profit of such a state”

Code of Criminal Procedure

The relevant provisions of the Code of Criminal Procedure in force at the time when the facts occurred read as follows:

Article 10

“(1) Criminal proceedings cannot be instituted and, if instituted, cannot be continued if

(a) the act was not committed at all;

(...)

(c) the act was not committed by the defendant;

(d) the act lacked one of the elements constituting the criminal act;

...”

Law no. 211 of 27 May 2004 on the protection of victims of criminal acts

Law no. 211 of 27 May 2004, entered into force on 4 June 2004, provides that victims of, inter alia , rape are entitled to receive full information as to all their procedural rights (Article 4 e), free psychological counselling (Article 8) and legal aid (Article 14), as well as to financial compensation from the State (Article 21). According to Article 23 of the Law, compensation can be obtained only if a criminal complaint is lodged by the victim within 60 days from the date when the criminal act occurred. Article 24 provides that where the perpetrator is known and in case the prosecutor did not institute criminal proceedings relying on Article 10 § 1 d), compensation can be awared if the victim made such a request within one year from the date of the prosecutor ’ s decision.

Family Code

Article 142

“The person who lacks the necessary discernment in order to take care of his or her own interests, due to alienation or mental retardation ( debilitate mintala ), shall be put under legal guardianship.”

COMPLAINTS

1. The applicant alleges a breach of Article 3 of the Convention on account of the ineffective investigation into her allegation of rape. She considers that the way the investigation was conducted amounted to a violation of the State ’ s obligation to protect her physical integrity and private life having regard in particular to her vulnerability to such an aggression as person with a mental handicap.

2. Under Article 6 of the Convention, the applicant complains that she was not provided with appropriate effective legal assistance (legal aid and detailed information as to her procedural rights) in respect of her complaint of rape, as required by Law no. 211/2004 on the protection of victims of criminal acts, assistance which was even more necessary in her situation of mentally handicapped person.

QUESTIONS TO THE PARTIES

1. Having regard to the positive obligations of States inherent in Articles 3 and 8 of the Convention to carry out an effective investigation and prosecution of acts of rape, was the investigation in the present case by the domestic authorities in breach of the above-mentioned Articles? In particular, did the approach taken by the prosecutors in the case, which put emphasis on the “direct” proof of rape, fall short of the requirements inherent in the States ’ positive obligation to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse (see M.C. v. Bulgaria , no. 39272/98, §§ 148, 153, ECHR 2003 ‑ XII, P.M. v. Bulgaria , no. 49669/07 , § 185, 24 January 2012 )?

The Government are invited to submit statistics and examples of cases of rape which were prosecuted despite the fact that the non-consenting victim had not opposed physical resistance.

The Government are further invited to submit a copy of the investigation file.

2. Did the applicant have at her disposal an effective domestic remedy within the meaning of Article 13 for her Convention complaints under Articles 3 and 8, having regard to, inter alia , her disability?