FIFTH SECTION

Application no. 41107/10 Y . against Slovenia

lodged on 17 July 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Y., is a Slovenian national who was born in 1987. She was represented before the Court by Mr J. Ahlin , a lawyer practising in Ljubljana .

A. The circumstances of the case

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

1. The background

The applicant was born in Ukraine . In 2000 she arrived in Slovenia with her sister and mother, who married a Slovenian. Between July and December 2001, at the age of 14, she was repeatedly sexually assaulted by a family friend X , 55 years old at the time , who together with his wife often took care of her . He also helped her in preparations for beauty contests. On one occasion X lay on the applicant while she was sleeping at his house and attempted to have sexual intercourse with her, which she resisted. On other occasions he forced her to have sex with him in a car, on certain business premises and at an apartment. He further sexually assaulted her, including forcing her to perform oral sex on him, in a car and in a garage.

In July 2002 the applicant told her mother about the alleged sexual assaults by X but was unwilling to talk about it with anyone else.

On 15 July 2002 a priest gave a statement to the Maribor p olice in which he said that the applicant ’ s mother had told him about her concern that the applicant had been raped by X.

2. Police investigation

On 16 July 2002 the applicant ’ s mother lodged a criminal complaint against X in which she alleged that X had forced the applicant to have sexual intercourse with him on several occasions.

On 17 July 200 2 the applicant was questioned by the Maribor p olice. She described how X had forced her into sexual activity with him .

Following a series of unsuccessful attempt s to obtain concrete information from the p olice as regards the progress of the investigation, the applicant ’ s mother complained to the Maribor District Prosecut or ’ s Office .

On 27 June 2003 the P rosecut or ’ s O ffice sent a letter to the Maribor p olice urging them to send them the criminal complaint lodged against X immediately.

On 18 August 2003 the police sent a report t o the Prosecutor ’ s Office. The police stated in the report that the applicant had failed to provide a detailed account of her allegations and had also failed to indicate the locations where the alleged rape had taken place. The police noted that the applicant had given an impression of being under severe psychological stress and fear of her mother ’ s reaction. They concluded that it was impossible to confirm her allegation of rape but also equally impossible to establish reasons for her serious emotion al distress.

3. Judicial investigation

On 28 August 2003 the P rosecut or ’ s O ffice lodged a request for a judicial investigation in respect of X based on charges of sexual assault of a minor below the age of fifteen under Article 183 § 2 of the Criminal Code. The request alleged that X had forced the applicant to engage in oral sex and had had sexual intercourse with her on at least three occasions despite her opposition and attempted resistance.

On 7 January 2005 X was summ on ed to appear before the investigati ng judge of the Maribor District Court. He refused to give an oral statement. On 10 March 2005 X, represented by a lawyer, submitted his written statement in which he denied the charges. He also submitted a medical report which indicated that his left arm had been disabled and he no longer had full use of it .

On 26 May 2005 the investigati ng judge issued a decision to open a criminal investigation in respect of X. The latter ’ s appeal against this decision was rejected by the P anel of Judges of the Maribor District Court.

On 17 October 2005 the applicant was examined as a witness before the Ljubljana District Court, which had been asked to perform the examination because the applicant reside d in the area. The examination continued on 8 November 2005. On that date the applicant testified in detail as to when, where and how the alleged offences took place. On the latter date the applicant ’ s mother was also examined.

On 13 and 20 December 2005 X ’ s wife was examined by the investigati ng judge of the Maribor District Court .

On 13 January 2006 the Koper District Court , at the request of the Maribor District Court, examined witness D., who testified that the applicant had told her of the alleged rape.

On 24 January 2006 the investigating judge of the Ljubljana District Court sent a letter to the Maribor District Court in which she explained her reasons for not informing X ’ s representative of the examination of the applicant on 8 November 2005 . She referred to section 240 ( 4 ) of the Criminal Procedure Act and to her experience with alleged victims of sexual assault as well as to the fact that at her first examination the applicant had appeared stressed and had burst in to tears when asked to testify .

On 23 March 2006 the investigati ng judge of the Maribor District Court examined witness N., who was X ’ s mother - in - law, and who testified that she knew nothing about the allegations.

On 14 April 2006 the investigati ng judge examined witness H., who was an employee in X and his wife ’ s company. H . testified that she had not noticed X behaving improper ly towards the applicant on the company ’ s premises. She was asked to testify as to whether there was a garage and other business premises located at a certain address, both of which had been mentioned by the applicant as the location at which the alleged offences had taken place. H. stated that there was no garage, but a construction which was used for, inter alia , parking cars. As to the second address, she denied that any business premises were there but stated that there were certain premises which X ’ s mother - in - law used for stor ing shoemaking tools.

On 16 May 2006 the investigati ng judge appointed an expert in gynaecology, B. The latter carried out a consultation with the applicant , who had refused a medical examination. She told him, inter alia , that despite the attempts made by X, there had been no actual sexual penetration. On 19 June 2006 the expert prepared his report , which was bas ed on the evidence in th e file, including a gynaecological report from 2002 which showed that the applicant ’ s hymen was intact at the time, and the conversation with the applicant . He found that there was no thing to indicat e with certainty that the applicant had had sexual intercourse with X during the period between July and December 2001.

On 20 June 2006 the investigati ng judge appointed an expert in clinical psychology, R. The latter, after holding a consultation with the applicant, submitted her report on 4 July 2006, which, in the part concerning her conclusions, read as follows:

“ Since 2001 Y has shown all the symptoms of a victim of sexual and other kind s of abuse (emotional, behaviour al and physical symptoms).

...

In addition to the emotional consequences, the girl shows very typical behaviour al patter n s relating to the abuse experience d by her, and also some physical symptoms ( disturbed sleep, nightmares, collaps ing ). The symptoms are indicated in the report ...

The gravity of the consequences – physical and sexual in particular – is difficult to assess at the present time. But, like the short-term ones, the long-term consequences can be predicted . Their real extent will become apparent at key stages of the girl ’ s life and in stressful situations.

...

Because of the se effects , which are most serious in her psychological sphere, ... it is of very marginal importance whether during the perpetrator ’ s violent behaviour the child victim experienced hymen defloration or no t ...

S exual behavioural patter n s can only be assessed properly by an expert in clinical psychology .. . ”

On 15 September 2009 the Maribor District Prosecutor indict ed X for sexual assault o f a child below the age of fifteen under Article 183 §§ 1 and 2 of the Criminal Code. X ’ s objection to the indictment was rejected by the Panel of Judges of the Maribor District Court on 20 October 2006.

4. The trial

The Maribor District Court scheduled a hearing for 27 June 2007. However, the hearing was cancelled following X ’ s request based on a document which showed that he had been put on sick leave until 30 June 2007.

A hearing was then scheduled for 3 October 2007, but cancelled at X ’ s request. The n ext hearing was to be held on 12 November 2007. However, owing to the absence of a jury member , the hearing was cancelled. Subsequently, X informed the court that he was about to go on a business trip, for which reason the next hearing was postponed until 16 January 2008.

On 16 January 2008 X failed to appear before the court. On 17 January 2008 he submitted a sick leave form.

On 25 January 2008 X ’ s representative informed the court that X had cancelled his power of attorney and that he would be represented by another lawyer, M. from then on.

On 28 January 2008 the court designated M . as a State - appointed lawyer.

The hearing scheduled for 20 February 2008 was cancelled owing to the trial judge being on holiday.

On 14 March 2008 the court held a hearing, from which the public was excluded on the grounds of protection of privacy and public moral s . The court heard X. At the hearing the court refused the applicant ’ s request for X ’ s representative, M., to withdraw from the proceeding s . As regards M. , the applicant and her mother claimed tha t they had sought advice from him in 2001 and also told him the circumstances of the case . Furthermore, the applicant ’ s mother had been intimately involved with him. M. denied that he had ever seen the applicant or her mother and said that he only knew that the lawyer , at whose firm he had been working at that time, had represented the applicant ’ s mother ’ s estranged husband in divorce proceedings.

On 14 March 2008 X filed his written pleadings.

On 14 April 2008 the court held the second hearing in the case. The applicant was summ on ed to testify. Her request for X to be absent from the chamber was granted . During her testimony, the applicant cried repeatedly and the hearing was suspended on that account. X ’ s representative also questioned the applicant.

On 9 May 2008 the court held the third hearing. The questioning of the applicant continued in the absence of X. When asked by X ’ s representative how she felt about the situation in hindsight , she cried and said that no one had helped her and that the court proceedings had been dragging on for eight years during which she had been re - living the trauma.

The n ext hearing was scheduled for 30 June 2008 but was postponed owing to X ’ s business obligations.

On 27 August 2008 the applicant lodged a supervisory appeal under the Protection of the Right to a Hearing without Undue Delay Act.

On 26 September 2008 the court held a hearing at which X questioned the applicant for four hours. At one point the applicant requested that the court suspend the hearing as the questions were t o o stressful for her. However, after being told by X that the next hearing could not be held until after 19 November 2008 when he would return from a bu siness trip, the applicant said, while crying , that he should continue with his questioning as she wanted to get over with it.

When confronted with the medical report which indicated that X ’ s left arm was seriously disabled, the applicant insisted in her testimony that she had seen X using his left arm in his daily life, including driving cars, lifting and carrying his children ’ s school bags, boxes and bottles.

On 13 October 2008 a hearing was held at which X was not present. X ’ s wife and two other witnesses were examined.

On 24 November 2008 the sixth hearing was held. The questioning of the applicant by X took an hour and a half. The records of the hearing indicated that the applicant had cried occasionally . T he applicant ’ s mother was also questioned. At the end of the hearing X ’ s representative , M., confirmed that he had encountered the applicant ’ s moth er at the time he worked in a fir m run by the lawyer who had represented her in certain court proceedings. He also stated that he would inform the court within three days as to whether he would request to be excused from representing X in the present proceedings. On 14 November 2008 he asked the court to remove him from the case as he had been personally affected by certain statement s made by the applicant ’ s mother.

At a hearing of 15 December 2008 the court dismissed the request by X ’ s representative finding that no statutory reasons for his withdrawal existed. The expert B. was examined as a witness.

On 22 January 2009 the court held the eight h hearing in the case and examined expert R . , who again stated that sexual abuse which had happened long ago could not be proven by material evidence but that only the psychological consequences could be assessed.

On 20 February 2009 the court appointed T., an expert in gynaecology , to give an opinion as to whether the applicant ’ s hymen could have remained intact if X had carried out the acts alleged by her.

On 10 March 2009 the expert submitted his report in which he affirmed that the alleged acts would not have necessarily led to hymen defloration and pointed out that this question was often not decisive in assessing this kind of issue.

On 16 March 2009 the court held a hearing at which it appointed N., an expert in orthopaedics, to prepare an opinion as to whether, in view of his disabled left arm, X could have preformed acts as alleged by the applicant.

On 5 May 2009 expert N. submitted his report in which he found that X ’ s left arm was severely disabled and that for th ose reasons the events could not have happened in the way described by the applicant.

On 8 June 2009 the court held a hearing at which it examined expert N. Further to question s put by the applicant ’ s representative, N. explained that he had based his opinion on the medical documents in the file and on the X ‑ rays brought to him by X.

A hearing was held on 9 July 2009. The applicant requested that expert N. be questioned further.

On 29 September 2009 the court held the twelfth and last hearing in the case. At the hearing the applicant and the public prosecutor questioned expert N., who submitted, inter alia , that X would not have been able to open the applicant ’ s legs with his left arm , and would not have been able to take off his trousers as alleged by her. After being asked by the prosecutor whether his assessment was based on the assumption that the applicant had used all he r force to resist X, N. stated: “I did not base my conclusion on that assumption as I did not know whether she had resisted or whether she willingly submitted.” After being asked whether the applicant who was then 14 years old could have resisted X who had allegedly been lying on her, he said he believed so. N. also testified that although X ’ s right arm was stronger t han usual he could not have assaulted the applicant as alleged by her. After the examination of N., the applicant, who obtained another expert opinion outside the court proceedings, requested that another expert in orthopaedics be appointed on the grounds that there had been doubts as to N. ’ s conclusions. This request , as well as the prosecutor ’ s request to examine the applicant again , was rejected by the court as unnecessary.

At the end of the hearing the court pronounced judgment , acquitting X of all charges. In view of this verdict, the court referred the applicant to pursue her claim for damages, which she had submitted in the course of the proceedings, before the civil court.

On 15 December 2 009 the applicant lodged a new supervisory appeal. O n 22 December 2009 she received a reply from the court i nforming her that the written grounds of th e judgment had been sent to her on that day.

In the written grounds, the court explained that the opinion of expert N. had raised doubts as to X ’ s ability to perform certain alleged acts for which he would have had to use both arm s. This, in the court ’ s opinion, had given rise to certain doubt s as regards other allegations made by the applicant . On the basis of the principle that any reasonable doubt should benefit the accused ( in dubio pro reo ), the court had acquitted X . As regards the report by the expert in psychology R., which found that the applicant had suffered sexual abuse, the court noted that one could not ignore the judgment issued in another set of proceedings concerning the applicant ’ s mother ’ s estranged husband in which the applicant and her mother had confirmed that he had engaged in sexual activity in front of the applicant and her sister and had also behaved inappropriately towards the applicant.

On 30 December 2009 the public prosecutor lodged an appeal, in which she criticised the court for not considering the fact that due to his age, gender and body mass X had bee n much stronger than the applicant and had also been in a position of power due to his economic and social status. The prosecutor argued that the criminal offence in question did not require the sexual act to have been committed by force ; it was sufficient that the victim opposed it. She also stressed that the proceeding s had been delayed for eight years which could aggravate the trauma suffered by the applicant.

The appeal was rejected by the Maribor Higher Court on 26 May 2010. The latter found that the fir st-instance court ’ s judgment was clear and precise in providing arguments as to the doubt that X had committed the alleged criminal acts.

The applicant subsequently requested that the Supreme Public Prosecutor lodge an application for the protection of legality, which is an extraordinary remedy. On 28 July 2010 the Supreme Public Prosecutor informed the applicant that the aforementioned application could only consider points of law and not assessment of fact , which the applicant had called into question.

5. The applicant ’ s medical condition

The applicant submitted a number of medical reports dating from 2008 onwards, which show that she has been regularly medically examined or treated for , inter alia , psoriasis, which was diagnosed in 2008, psychological problems and viral respiratory infections. After a number of examinations, she was diagnosed with multiple-sclerosis and chronic fatigue syndrome in May 2010 .

B. Relevant domestic law

Article 183 §§ 1 and 2 of the Criminal Code (Official Gazette nos. 69/1994 and 23/1999, in force until 1 November 2008), concerning the criminal offence of sexual assault o f a person younger than 15 years, reads as follow s :

“(1) A person who engages in sexual intercourse or any other sexual act with a person of the opposite or same sex who is not yet fifteen years old, and if the maturity of the perpet r ator and the victim is obviously disproportional , should be punished with imprisonment of one to eight years .

(2) The person who commits the above act against a person who is not yet ten years old, or against a vulnerable person who is not yet fifteen years old, or by using force or threat to life or limb, should be punished with imprisonment of three years or more.

... ”

Section 240 of the Criminal Procedure Act (Official Gazette no. 116/2003 – official consolidate d version) reads , in so far as relevant , as follows:

“ ...

(4) When examining the minor, in particular if he or she has been affected by the criminal offence, one has to act with diligence in order to prevent the examination hav ing any harmful effect on his or her mental state. If necessary, the examination of the minor should be carried out by a social worker or other expert.”

Section 286 of the Criminal Procedure Act reads, in so far as relevant, as follows:

“ ...

(2) The preside nt of the panel should schedule a hearing no later than two months after receipt of the indictment ... If no hearing is set within the afore mentioned time-limit, he or she must inform the president of the court of the reasons for not scheduling the hearing. The president of the court must do wh at is necessary to schedule the hearing.”

COMPLAINTS

The applicant complains under Articles 3 and 8 of the Convention that the respondent State violated its positive obligations deriving from the aforementioned provisions.

In particular, she complains that the investigation and the court proceedings were unreasonably delayed, lacked impartiality and were ineffective, and that the court refused to call important witnesses and appoint a new expert in orthopaedics. Furthermore, the court showed bias by relying predominantly on the report by expert N. and by allowing the lawyer, who had previously been involved in the case, to represent the defendant.

The applicant further complains that the State failed to take measures to protect her integrity during the tr i al. The delay in the court proceedings and the manner in which they were conducted, in particular the direct prolonged questioning by X, aggravated her trauma and caused her severe and permanent psychological difficulties which also led to autoimmune diseases and caused her suffering which reached the level of severity required under Article 3 and also gave rise to a violation of Article 8 of the Convention.

Under Article 13 of the Convention, the applicant complains that the national legal system did not afford her an effective remedy in respect of the above complaints.

QUESTIONS TO THE PARTIES

1. Was the investigation concerning the applicant ’ s allegations of sexual abuse and the ensuing proceedings against X effective as required by the positive obligations inherent 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) ?

2. Did the authorities take the necessary measures to conduct the proceedings without unjustified delays and to prevent, to the extent reasonably possible, the aggravation of the applicant ’ s trauma ? Was there a violation of the positive obligations inherent in Article 3 and /or Article 8 of the Convention on account of the lack of such measures?

3 . Has there been a violation of Article 13 in conjunction with Article 3 or 8 o f the Convention?