CONCURRING OPINION OF JUDGE TULKENS

(Translation)

In this particularly sensitive and delicate case, I should simply like to make a few additional observations.

1. I consider that it was important and significant that the Court should examine the case under both Article 3 and Article 8 of the Convention. Rape infringes not only the right to personal integrity (both physical and psychological) as guaranteed by Article 3, but also the right to autonomy as a component of the right to respect for private life as guaranteed by Article 8.

2. I agree entirely with the Court's general approach (see paragraphs 148 et seq. of the judgment) and the manner in which it was applied in the present case (see paragraphs 169 et seq.). The only point I wish to clarify concerns the use of criminal remedies. Relying, in particular, on X and Y v. the Netherlands (judgment of 26 March 1985, Series A no. 91), the Court considers that “States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing rape” (see paragraph 153). Admittedly, recourse to the criminal law may be understandable where offences of this kind are concerned. However, it is also important to emphasise on a more general level , as, indeed, the Court did in X and Y v. the Netherlands itself, that “[r]ecourse to the criminal law is not necessarily the only answer” (p. 12, § 24 in fine ). I consider that criminal proceedings should remain, both in theory and in practice, a last resort or subsidiary remedy and that their use, even in the context of positive obligations, calls for a certain degree of “restraint”. As to the assumption that criminal remedies are, in any event, the most effective in terms of deterrence, the observations set out in the Report on Decriminalisation by the European Committee on Crime Problems clearly show that the effectiveness of general deterrence based on the criminal law depends on various factors and that such an approach “is not the only way of preventing undesirable behaviour” [1] .

3. That said, in the present case, as in X and Y v. the Netherlands (p. 13, § 27), once the State has opted for a system of protection based on the criminal law, it is of course essential that the relevant criminal-law provisions are fully and rigorously applied in order to provide the applicant with practical and effective protection. In that connection, the Court's observation that “[t]he investigation and its conclusion must be centred on the issue of non-consent” (see paragraph 181 of the present judgment) is, in my opinion, of fundamental importance.

1. European Committee on Crime Problems, Report on Decriminalisation , Strasbourg, Council of Europe, 1980, pp. 75-78.