Published on 9 May 2022

SECOND SECTION

Application no. 36024/17 A.G. against Turkey lodged on 24 April 2017 communicated on 22 April 2022

SUBJECT MATTER OF THE CASE

The application concerns the domestic authorities’ decision not to prosecute into the applicant’s allegation that she had been sexually abused and raped multiple times over the course of two years by her Yoga teacher through hypnosis, deception, and manipulation. During the preliminary investigation the applicant went through a forensic psychiatric examination, which revealed that she suffered from mild post-traumatic stress disorder; that her psychological status “corresponded” to a sexual assault trauma described by her and that the master and student dynamic between her and her teacher and the latter’s inappropriate instructions could have voided her consent to sex.

The applicant also told the public prosecutor that other students had come forward with similar allegations. On 8 September 2015 the public prosecutor issued a decision not to prosecute the suspect for lack of objective and concrete proof. In coming to this conclusion he relied on the following grounds (i) absence of physical evidence of the alleged sexual attack (ii) the forensic report’s conclusion that there had been no scientific and legal grounds to support the applicant’s allegations (iii) news and articles on hypnosis (iv) unreliable witness testimonies (v) the fact that other public prosecutors had decided not to prosecute the suspect with respect to similar complaints (vi) the suspect’s statement that the sexual relations between the applicant and himself had been consensual and that the applicant had accused him to get back at him on a commercial dispute.

The applicant complains under Article 6 of the Convention about the alleged ineffectiveness of the investigation, including the stereotyped approach of the authorities to her account of the sexual abuse and rape, and about the fact that the forensic report, which in fact, corroborated her testimony was not taken into account.

QUESTIONS TO THE PARTIES

Having regard to the positive obligations of States inherent in Articles 3 and 8 of the Convention to carry out a thorough and effective investigation and prosecution of acts of sexual abuse and rape, was the investigation in the present case by the domestic authorities in breach of the above-mentioned Articles? In that connection, did the grounds relied on by the prosecutor in the case, 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, among others, M.C. v. Bulgaria , no. 39272/98, §§ 148, 153, ECHR 2003‑XII, and P.M. v. Bulgaria , no. 49669/07, § 185, 24 January 2012)? In particular:

- Is the reasoning employed in the prosecutor’s decision of 8 September 2015 to the effect that the applicant’s forensic report had noted that there existed no scientific and legal evidence to corroborate the applicant’s version of events, accurate?

- Is the fact that the public prosecutor did not investigate himself the similar allegations made by other students against the suspect but relied only on the conclusions made by other prosecutors a shortcoming? Could it be said that for the investigation to be effective it had to be conducted in a holistic and comprehensive manner by a single prosecutor’s office?

- Given the particular characteristics of the alleged sexual offence in this context (absence of physical coercion, the master-student dynamic, the allegedly manipulative techniques employed by the suspect), did the approach of the authorities fall short of the required sophistication?

The Government are requested to submit all documents related to the investigation in the applicant’s case, including the testimonies and statements collected by the public prosecutor .