Published on 25 July 2022

FOURTH SECTION

Application no. 28935/21 M.Ș.D. against Romania lodged on 26 May 2021 communicated on 8 July 2022

SUBJECT MATTER OF THE CASE

The application concerns the alleged lack of effective investigations with respect to the criminal complaint brought on 31 October 2016 by the applicant, aged 18, against her former partner V., who had downloaded her nude photographs and took revenge on her by creating fake profiles in social media and on a website offering escort services and populating them with sexually explicit content, including the name, phone number and photos of the applicant. The applicant complained to the police, who did not undertake meaningful investigative steps about it for about two years until 22 August 2018, when the accused person was questioned and confessed his guilt. Four years after the criminal complaint, the investigation was closed by a prosecutor’s decision ( Parchetul de pe lângă Judecătoria Sector 2 București ) of 10 June 2020, upheld by a court judgement of 15 December 2020, on the grounds that:

- Article 226, §§ 1 and 2 of the Criminal Code incriminating violation of the private life was not applicable because the applicant send herself her nude photos to the suspect;

- the criminal liability in respect to the accusations of harassment and menace (Articles 208 § 2 and Article 206 § 1 of the Criminal Code) was time ‑ barred;

- there was no public interest into the prosecution ( nu exista interes public în urmărirea faptei ) regarding the reminder of the accusations of cybercrime ( fals informatic ) punished by Article 325 of the Criminal Code.

Regarding the last point, the prosecutor ordered the suspect to publicly present apologies to the applicant and to perform 60 hours of community service.

QUESTIONS TO THE PARTIES

1. Did the competent authorities discharge their obligation under Article 8 of the Convention to provide the applicant with an effective protection against online harassment by dissemination of her intimate photographs including on a website offering escort services and to carry out an effective investigation into fake social-media accounts capable of leading to the prosecution of the perpetrator (compare K.U. v. Finland , no. 2872/02, § 49, ECHR 2008, Buturugă v. Romania , no. 56867/15, §§ 73-78, 11 February 2020, and Volodina v. Russia (no. 2) , no. 40419/19, § 68, 14 September 2021)?

2. Having regard to the definition of “revenge porn” by the United Nations Human Rights Council’s Special Rapporteur on violence against women in the Report on online violence against women and girls from a human rights perspective (A/HRC/38/47, 18 June 2018) as “non-consensual online dissemination of intimate images, obtained with or without consent, with the purpose of shaming, stigmatising or harming the victim” (points 33 and 41), is the Romanian legal system effectively prohibiting and criminalising online violence against women, in particular the non-consensual dissemination of intimate images and the threat to disseminate such images?

3. Having regard to the applicant’s grievance concerning the prosecutor’s remarks blaming her for sending her own photos “in indecent poses” (see among others the following statement “ însăși persoana vătămată a avut o contribuţie substanţială în transformarea relaţiei cu suspectul într-una centrată pe o sexualitate exacerbată, alegâng să trimită (...) suspectului fotografii proprii în ipostaze indecente” – extract from p. 10 of the prosecutor’s decision of 10 June 2020) and minimising the gravity of the acts of the perpetrator, qualified as “puerile” and committed by a person of young age ( vârstă fragedă ), has the applicant suffered discrimination on the grounds of her sex, in breach of Article 14 of the Convention, taken in conjunction with Articles 8?