THIRD SECTION

Application no. 36934/08 I.M. against Romania lodged on 14 July 2008

STATEMENT OF FACTS

1. The applicant, Ms I.M., is a Romanian national, who was born in 1992 and lives in the village of Cotiglet . She is represented before the Court by her father, Mr S.M .

A. The circumstances of the case

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

3. The applicant alleged that on 13 January 2007, at the age of fourteen years and four months, she had been raped by a man and was the victim of attempted rape by a second man.

1. The alleged rape

4. In the evening of 13 January 2007, while attending a funeral wake with her family, the applicant and two girlfriends went to fetch some drinking water at a neighbouring house. On their way, three men, M.C., M.S. and M.C.S., approached the girls. M.C. pulled the applicant ’ s arm behind her back and forced her to go with them into the garden of a nearby deserted building, where another man, C.M., was waiting. The three men left and C.M. pushed the applicant to the ground, partially undressed her and forced her to have sex with him. He then left for about fifteen minutes, during which time the applicant was prevented from leaving the place by M.C.S., who held her there by force. C.M. returned and forced the applicant to have sex with him a second time. Another man, A.C.L., arrived at the scene and tried to have sex with the applicant, but failed. A sixth man, V.F. was also there. He helped the applicant get up, clean and dress herself, and accompanied her back to the funeral wake. Twenty minutes later the applicant ’ s family alerted the police, who arrived at the scene of the incident and took the applicant ’ s statement.

2. The applicant ’ s medical condition

5. According to a forensic medical report issued on 14 January 2007, the day after the incident, there were no signs of traumatic lesions on the applicant ’ s body and no sperm could be identified in her vaginal fluids. The forensic doctor found signs of pathology which could have resulted from sexual intercourse. However, the applicant ’ s hymen was intact, since her genital anatomy permitted sexual contact without defloration. Lastly, the doctor mentioned that the applicant was in a state of anxiety and fear, and he recommended psychological counselling and possibly a neuropsychiatric examination.

6. On 15 February 2007 the applicant was hospitalised in the Oradea Psychiatric Hospital for a period of fourteen days. The hospital observation sheet stated that the applicant had sought treatment because she had been raped. She was diagnosed with stress-related anxiety, irritability, a sleep disorder, slight intellectual disability (an IQ of 68) and lice infestation. She was treated with anxiolytics and anti-depressives, and was released from hospital in a slightly improved condition.

7. On 5 March 2007 an additional forensic report was issued at the request of the applicant ’ s father. It stated that the applicant presented a psychological disorder caused by a physical and psychological trauma to which she had been exposed on 13 January 2007. The forensic doctor held that, according to the documents presented by the Oradea Psychiatric Hospital, the applicant required fourteen days ’ neuropsychiatric treatment. No signs of pregnancy were detected.

8. On 24 April 2007 the applicant was readmitted to the Oradea Psychiatric Hospital. According to the hospital observation sheet, her state of health was slightly improving but she had started to have headaches. She was released from hospital the following day with the recommendation that she continue the initial treatment and return for examination at the end of May.

9. In July 2007 the applicant was hospitalised in the Oradea Psychiatric Hospital for a further fourteen days with symptoms including frontal headaches, depression, tearfulness and feelings of social isolation. She was again diagnosed with an emotional disorder, a sleep disorder, slight intellectual disability, rachitic sequels, anaemia, and lice infestation. The applicant received treatment with neurotropic drugs, anxiolytics and vitamins. The doctors recommended the continuation of the treatment with neurotropic drugs and anxiolytics until the next examination, which was set for September.

3. Criminal proceedings

10. Following a complaint lodged with the police by the applicant ’ s parents, an investigation was opened with respect to the incident of 13 January 2007.

11. Later that year C.M. was indicted under Article 198 (1) of the Criminal Code for sexual intercourse with a minor and A.C.L. for attempted sexual intercourse with a minor.

12. On 12 October 2007 the Beiu ÅŸ District Court convicted C.M. of sexual intercourse with a minor and gave him a suspended sentence of one year and four months. A.C.L. was convicted of attempted sexual intercourse with a minor and given a suspended sentence of one year. The court focused its entire analysis around the issue of whether the defendants had known that the applicant had been a minor at the time of the incident.

13. The applicant was heard before the court on 15 June 2007. She stated that she had been taken by force to a deserted house by M.C., who had grabbed her hand and pulled it behind her back. He was accompanied by M.S. and M.C.S. When they arrived at the deserted house C.M. was already there. He forced her to have sex with him, then left and returned to have sex with her a second time. M.C. prevented her from leaving the place in the meantime. A.C.L. arrived afterwards and tried to force her to have sex with him too, but was unable. V.F., who was also there, helped her to clean up and dress herself, and accompanied her back to the funeral .

14. In his statement before the court, C.M. said that M.C. had told him that the applicant was waiting for him at the deserted house. He went there and asked the applicant to have sex with him and she agreed. He did not know that she was under fifteen years of age. He further stated that, following the arrival of A.C.L. and V.F., he had left the place to make a telephone call and had not returned, and therefore did not know what happened afterwards.

15. In his statement before the court, A.C.L. said that he had been passing the place of the incident when he had heard some noise and had gone to see what was happening. On the way he met V.F., who joined him. He then saw C.M. having sex with the applicant. When C.M. left to speak on his phone, he approached the applicant and asked her whether she would agree to have sex with him. When she did not reply, he tried to have sex with her but was unable to complete the act. He did not know that she was under age at the time. He further stated:

“Afterwards I got up and went home . V.F. stayed there and sat down next to the victim. As I walked away from the place ... I could not see what happened between them. ... After the two of them left, C.M. went back to the place and recovered his jacket and then we left the place together.”

16. M.C. was heard by the court as a witness on 31 August 2007. He declared that he had also been at the funeral wake with his friends, M.C., M.S. and M.C.S. When he saw the three girls leaving he decided, together with M.S. and M.C.S., to ambush them in order to kiss them (a tradition among young people during funeral wakes in the region). So they followed the girls and he grabbed the applicant ’ s arm and pulled it behind her back in order to take her to a quiet place where they could play their game. M.S. grabbed the applicant ’ s other arm. When they arrived at the place of the incident, it was the applicant who said she would like to play the game with C.M. Therefore, he went back to the wake and told C.M. that the applicant was waiting for him. He remained at the wake for thirty more minutes and then went home. He also stated:

“The next day I was summoned to the police station where we gave statements. After that I asked C.M. what had happened and he told me he had raped her [the applicant]. He didn ’ t seem happy with what he had done . We had played this game before at another wake and you must take the girl to a secluded place where she must be kissed by the boy she wants. When the defendant [C.M.] told me he had raped the victim, he also mentioned that he had kissed her.”

17. One of the girls who had accompanied the applicant on the night of the incident, Z.F., stated before the court that when the three boys had taken the applicant with them, she had not cried for help and it was only some time after the incident that the applicant told her that she had been raped by C.M. and A.C.L. She also said that the applicant was a quiet girl who did not go out with boys.

18. The applicant also sought civil damages from the two defendants. Although she had submitted copies of the forensic medical reports issued on 14 January and 5 March 2007 to prove her medical condition following the incident, the court rejected her claims for both pecuniary and non-pecuniary damages. With respect to the pecuniary damages, the court considered that the conditions for which the applicant had been treated had no connection with the incident at issue. The court rejected the applicant ’ s request for non-pecuniary damages as ill-founded on the grounds that the applicant had not been deprived of her virginity by C.M.

19. The decision of the Beiu ÅŸ District Court was appealed against by all parties to the trial, including the applicant.

20. On 27 February 2008 the Bihor County Court decided to increase the sentences received by the two defendants to three years ’ imprisonment for C.M. and eighteen months ’ imprisonment for A.C.L. The decisions of the Beiu ş District Court concerning the suspension of the execution of the sentences were upheld. The court also decided to award the applicant 2,000 lei (RON) in respect of non-pecuniary damage. The forensic medical report issued on 5 March 2007 was not discussed by the court, which said in its reasoning:

“It must be mentioned that the victim tried to assert that, in fact, she had not agree d to have sex with the two defendants and that she had been the victim of a rape, but these allegations were not proved in any way. Hence, the witnesses Z.F. and P.A. [the two girls who had accompanied the applicant] ... stated that ... the injured party had not cried for help ...

It must also be noted that from the forensic medical report ... it does not appear that the injured party was the victim of a rape, since her body showed no signs of post - traumatic injury .”

21 . An appeal on points of law ( recurs ) lodged by the applicant against that judgment was rejected as ill-founded on 8 May 2008 by the final judgment of the Oradea Court of Appeal. The Court of Appeal held that by corroborating the victim ’ s statement with the forensic medical report of 14 January 2007, the existence of a crime of rape had been excluded.

B. Relevant law and practice

22. The relevant articles of the Romanian Criminal Code in force at the time of the events read as follows:

Article 197 Rape

“(1) Sexual intercourse, of any kind, with a person of a different sex or of the same sex, by constraint or taking advantage of the victim ’ s lack of capacity to express [his/her] will, is punishable by a term of imprisonment of three to ten years and the withdrawal of certain rights.

...

(3) The punishment is imprisonment from ten to twenty-five years and the withdrawal of certain rights if the victim is under the age of fifteen ... ”

Article 198(1 ) Sexual intercourse with a minor

“Sexual intercourse, of any kind, with a person of a different sex or of the same sex, who is under the age of fifteen , is punishable by a term of imprisonment of three to ten years and the withdrawal of certain rights.”

23 . Romanian law professors and lawyers have often expressed the view that any sexual act with a person under a certain age should be considered as rape . For example, in an edition of the Romanian Criminal Code commented on by law professors , it is stated that in order to establish whether the under-age victim had expressed valid consent to a sexual act, the biological and psychological development of the person were of utmost relevance . T herefore, the person ’ s capacity to express her valid consent must be evaluated on a case - by - case basis. In this connection, the authors cited a decision of the Bucharest County Court ( no. 169/1982 ) in which it had been held that the sexual act with a nine - year - old girl constitute d rape because it could not be said that the victim could have freely express ed her consent ( Basarab Matei , Pasca Viorel , Criminal Code Commented, Special Part (II) , Bucharest, Hamangia Edition, 2008, p. 288).

24. In addition, a criminal - law manual published as long ago as 1998 acknowledge d the lack of precision in the law on this subject . It stated that practitioners believe d that when the victim was under age, the lack of capacity to defend herself or to express her will should be determined on a case - by - case basis (Octavian Loghin , Tudorel Toader , Romanian Criminal Law, third edition, Bucharest, 1998, p. 185).

25. In a judgment adopted on 5 April 2012 the Romanian High Court of Justice and Cassation decided that the case of a fourteen year-old girl with behavioural problems who had been forced to have sex with two men must be considered rape even though there was no proof of physical resistance and the victim had not told anyone that she had been raped. The court based its decision on the following facts: the victim ’ s age and psychological vulnerability; the context in which the incident had taken place – at night, in a secluded area, in cold weather; and the forensic psychiatric expert opinion ordered in the case, which concluded that the victim had had symptoms of post-traumatic stress and limited intellectual capacity (an IQ of 75) (Decision no. 1037 of 5 April 2012 of the Criminal Section of the High Court of Justice and Cassation).

26. A detailed description of the legal provisions and practice in certain European countries concerning the notion of consent and the victim ’ s resistance in the context of the crime of rape can be found in the case of M.C. v. Bulgaria ( no. 39272/98 , §§ 88-100, 4 March 2004) .

27. Excerpts from the relevant provisions of the Council of Europe ’ s Committee of Ministers Recommendation on the protection of women against violence can also be found in the case of M.C. v. Bulgaria ( c ited above , § 101).

COMPLAINT

Without invoking any Article of the Convention, t he applicant complains that the authorities failed to conduct an effective investigation and a fair trial on the events of 13 January 2007. She alleges that she was raped that evening and she complains that the authorities put undue emphasis on the absence on her body of any signs of physical violence and of resistance against the perpetrators, without taking into consideration her age and physical and psychological condition or the fact that six adult men had participated in her rape .

Lastly, t he applicant alleges that the domestic authorities based their decisions only on the statements of the perpetrators and overlooked essential evidence , such as the results of her psychiatric examination s, awarding her a disproportionately low sum of money in respect of non-pecuniary damage.

QUESTIONS TO THE PARTIES

1. Does the case concern a positive obligation arising under Article 3 and/or Article 8 of the Convention, to protect the applicant ’ s physical and/or moral integrity and her private life?

2. If so, have there been violations of Articles 3 and/or 8 of the Convention on account of the alleged ineffective investigation and trial imposing an excessive burden on the applicant to prove physical resistance to rape ( M.C. v. Bulgaria , no. 39272/98, 4 March 2004) ?

The Government are invited to submit a copy of the file concerning the criminal investigation and the trial before the domestic courts with respect to the applicant ’ s complaint of sexual abuse against all perpetrators.