In the case of Tyagunova v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 10 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
19433/07) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Russian national, Ms Tatyana Vasilyevna Tyagunova (“the
applicant”), on 31 March 2007.
The applicant was represented by Mr A. Lobov, a
lawyer practising in Chelyabinsk. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that the
investigation of her complaint of rape had not been effective.
On 3 September 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1975 and lives in Chelyabinsk.
A. The events of 23 June 2005
On 23 June 2005 the applicant, a nurse at a
private dentist’s office at the time, attended a small party with her
colleagues to celebrate the approval of an application for a dental practice
licence. Then four of them, including the applicant, went to a lake, where they
continued to celebrate. They left the lake late in the evening. According to
the applicant, on her way home she was stopped by a group of men, who
threatened her with a knife and beat her. She was raped and forced to engage in
other sexual activities. Thereafter she was taken to a flat, where she was let
in by a teenage girl, fourteen or fifteen years old. A man of forty or fifty
years of age made her stay in the flat and allowed her to leave only in the
morning. When she got home, she discovered that certain clothing was missing.
Her jewellery, including a gold chain and a pendant, had also disappeared. Her
jeans and T-shirt were covered with dirt, grass and blood. She had bruises and
contusions on her body.
B. Ensuing investigation
1. Preliminary inquiry
. On 24 June 2005 the
applicant complained to the prosecutor’s office that she had been raped and
robbed. She could not recall the events of the previous night in detail. First
she alleged that she had been raped by Sh., the man who had taken her to the
flat. Then she submitted that it was the group of men she had met near her
place of residence who had raped her.
The applicant remembered the nicknames the men
had used to address each other. She also reported the first name of the girl
who had let her into the flat. She could not remember the flat number or its
floor. Nor could she provide a detailed description of the flat’s interior.
On the same day she was examined by a forensic
expert, who noted the presence of bruises and contusions on her body, but no
injuries in the area of the genitals or the anus. She also had a smear test,
which did not detect the presence of spermatozoids.
Investigator B. questioned the applicant and her
colleagues who had participated in the party. K., another nurse, submitted that
the applicant had been drunk and had fallen down several times on the way back
from the lake. She doubted that the applicant had been raped, and suggested that
the latter had concocted the story for her husband.
The investigator also questioned Sh. who denied
all the allegations.
On 3 July 2005 investigator B. dismissed
the applicant’s complaint. He found her allegations unsubstantiated, noting
that on the night in question she had been drunk and had fallen down several
times. He further concluded that her story was vague and contradictory and was an
attempt to exonerate herself to her husband.
On 20 July 2005 the Chelyabinsk Leninskiy
District prosecutor quashed the decision of 3 July 2005. The prosecutor
noted that the inquiry in response to the applicant’s complaint had been
incomplete. He indicated that the investigator should question further (1) the
applicant, to remove the contradictions in her account of the events, (2) her
colleagues, and (3) the teenage girl from the flat. The investigator was also
to establish the identity of the men whom the applicant accused of having raped
her.
On 27 July 2005 investigator B. dismissed
the applicant’s complaint as unsubstantiated. From the text of his decision, it
is not clear whether he had conducted new examinations of the applicant and her
colleagues, whom he had questioned earlier. He had also interviewed the
applicant’s husband and some other colleagues of hers, who had provided
positive references as to the applicant’s character. With reference to the
medical report, B. noted that there were several bruises and contusions on the
applicant’s body, but no injuries in the area of the genitals or the anus. He
concluded as follows:
“Regard being had to [the evidence stated above], the
additional inquiry conducted in response to the [applicant’s] complaint has not
led to the discovery of the objective data showing that on the night from 23 to
24 June 2005 [the applicant] was raped. [The applicant] was in an
inebriated state of strong intensity, she fell down several times. Nor can she
provide a detailed account of the events. She makes contradictory submissions
that might suggest that she concocted her story in an attempt to exonerate
herself to her husband.”
On 24 August 2005 the Chelyabinsk Leninskiy
District deputy prosecutor quashed the decision of 27 July 2005 and
remitted the matter for further inquiry. The prosecutor noted that the
investigator had failed to question the applicant further to elucidate the
inconsistencies in her submissions, and had done nothing to identify and
question the individuals whose nicknames the applicant had reported.
On 12 September 2005 investigator P.
dismissed the applicant’s allegation of rape for the same reasons as before.
According to his findings, when questioned again the applicant said that she
had come with Sh. to the flat of her own will, had stayed there for some time
and had then left. Referring to the inconsistencies in the applicant’s account
of the events, the investigator found her submissions unreliable. In
particular, he noted as follows:
“Regard being had to [the evidence stated above], the
additional inquiry conducted in response to the [applicant’s] complaint has not
led to the discovery of the objective data showing that on the night from 23 to
24 June 2005 a crime [alleged by the applicant] was committed. All the
explanations provided by [the applicant] are not only contradictory, they are
not logical or consistent. [The applicant] cannot answer any specific question.
Her submissions contradict each other, they also contradict her husband’s
statements. For example, she told her husband that Sh. had made death threats
to her and that he had admitted to having robbed their flat. When questioned in
the prosecutor’s office, she said that Sh. had denied his participation [in the
robbery]. Furthermore, it was established that if [the applicant] had spent the
night in someone’s flat, it was not Sh.’s flat. He had seven cats and six dogs
living with him and it was impossible to miss them. Nevertheless, the applicant
did not notice them.”
On 6 October 2005 the Chelyabinsk Region deputy
prosecutor quashed the decision of 12 September 2005 and ordered a further
inquiry into the applicant’s complaint. The deputy prosecutor indicated a
number of specific actions to be taken by the investigator. In particular, the
identity of the teenage girl the applicant had referred to was to be
established; the applicant’s colleagues were to be questioned as to the
allegations that the applicant had fallen down; the clothes the applicant had been
wearing on the day in question were to be admitted into evidence and subjected
to examination; and the men the applicant accused of raping her were to be
identified.
. On 20 October 2005
investigator K. refused to open a criminal investigation in connection with the
applicant’s allegations, and dismissed them as unsubstantiated concluding as
follows:
“Regard being had to [the evidence stated above], the
additional inquiry conducted in response to the [applicant’s] complaint has not
led to the discovery of the objective data showing that on the night from 23 to
24 June 2005 a crime [alleged by the applicant] was committed. All the
explanations provided by [the applicant] are not only contradictory, they are
not logical or consistent. [The applicant] cannot answer any specific question.
Her submissions contradict the statements made by other persons including her
husband. Furthermore, at the beginning [the applicant] alleged that Sh. had
raped her. Then she claimed that she had been raped by ten men at the entrance [to
a block of flats]. Furthermore, she told her husband that Sh. had made death
threats to her and that he had admitted to having robbed their flat. When
questioned in the prosecutor’s office, she said that Sh. had denied his
participation [in the robbery]. Furthermore, it was established that if [the
applicant] had spent the night in someone’s flat, it was not Sh.’s flat. He had
seven cats and six dogs living with him and it was impossible to miss them.
Nevertheless, the applicant said that she had not noticed the animals. Accordingly,
the applicant’s allegations do not correspond to the facts and cannot be viewed
as credible.”
2. Official investigation
. On 25 November 2005 the
first deputy prosecutor of the Chelyabinsk Region quashed the decision of
20 October 2005, noting that objective data confirming the applicant’s
allegations existed, and opened an official criminal investigation in
connection with the events of 23 June 2005.
In November and December 2005 the investigator
questioned the applicant, her husband and her former colleagues again. The
investigator further obtained the clothes she was wearing at the time of the alleged
assault and commissioned a forensic examination.
. On 22 December 2005 the
investigator inspected the alleged rape scene to verify the applicant’s
allegations. The applicant was also present and gave explanations.
. On 26 December 2005
expert Zar. conducted a forensic biological examination of the applicant’s
clothes. The expert detected blood and sperm stains on the applicant’s jeans
and T-shirt.
On 25 January 2006 the investigator joined
the investigation of the robbery and the rape.
. On 19 February 2006
expert Zar. conducted an additional biological examination of the applicant’s
clothes. She concluded that the blood found on them could have been that of the
applicant. The report remained silent as to the preservation or destruction of
the DNA evidence or the possibility of its analysis.
In February 2006 the investigator questioned
Sh., his girlfriend, his niece, and R. and P., who were allegedly present at
the crime scene at the relevant time. He organised a confrontation between the
applicant and Sh.
In March 2006 the investigator questioned Shk., who
was also present at the crime scene at the relevant time. The investigator
asked the applicant to identify P., R. and Sh. from photographs, which she
failed to do. When questioned by the investigator, the applicant’s
brother-in-law claimed that he had heard that two brothers M. had committed the
rape.
On 5 April 2006 the investigator questioned
Aleksandr M., one of the brothers who had allegedly been involved in the rape.
He denied all the allegations. According to the examination record, the
investigator did not question the said witness as to his or his brother’s
whereabouts on 23‑24 June 2005.
. On 12 May 2006 forensic
expert Zap. analysed the applicant’s clothes. She detected blood and
spermatozoids on them. In her opinion, it was possible to use the biological
material collected for further genetic examination in order to determine whose
sperm it was.
On 25 May 2006 investigator G. suspended
the criminal investigation, noting as follows:
“Whereas the time-limit established for the preliminary
investigation in this case expires on 25 May 2006 and all the
investigative activities that could be carried out for establishing the accused
have been completed and in compliance with Article 208 § 1 of the
Code of Criminal Procedure [impossibility to identify the offenders].
I hereby decide
(1) To suspend the criminal investigation ... .”
. On 9 June 2006 the first
deputy regional prosecutor quashed the decision of 25 May 2006 and ordered
further investigation. In particular, he noted as follows:
“The examination of the materials of the case-file shows that
[the investigating authorities] have failed to carry out all the investigative
activities for establishing the perpetrators.
In particular, when questioned, [the applicant] submitted that
the alleged perpetrators had addressed each other by nicknames and names ... .
However, no measures have been taken to identify and search for those persons. Furthermore,
no action has been taken to identify a person named Dmitry, whom the applicant
mentioned during the interview on 15 December 2005 and who might know some
of the alleged perpetrators.
[The applicant] also submitted that after the rape an unknown
man took her to a flat nearby where he held her until 6 a.m. of the following
morning. It was a girl named either Katya or Nastya who opened the door to the
flat and subsequently let [the applicant] out. However, these circumstances
have not been duly verified. The applicant has not been questioned as to the
age of the girl. No action to identify the girl and question her has been
taken.
...
... during repeated interviews [the applicant] made confused
and inconsistent statements which fact suggests that it is necessary to subject
her to polygraph testing.
On several occasions [the applicant] was asked to identify
certain persons by photographs. Twice she identified S. According to the
investigators, however, he has no connection to the case. However, S. has never
been questioned. Nor has there been a confrontation organised between him and
the applicant. His possible involvement in the case has not been assessed from
the legal standpoint.
According to [the applicant’s husband], during the night [of
the events in question] there was a group of young men seen in the yard of the
block of flats who participated in the graduates’ party of school no. 55.
However, the investigators have failed to verify the information about the
graduates’ party..., to identify the graduates and to perform any action in
this regard.
Lastly, the investigators have failed to comply with certain
rules of criminal procedure. In particular, on 10 May 2006 they
commissioned an additional biological forensic examination. The expert’s report
has not been included in the case-file. The applicant has not been apprised of
the expert’s findings ...”
In July 2006 the investigator questioned a
number of individuals (approximately thirty-five) who lived in a block of flats
near the alleged crime scene. None of them had witnessed or heard anything during
the night of 23-24 June 2005. Nor had they heard that a woman had been
raped in the neighbourhood.
On 28 September 2006 R. was subjected to
polygraph testing. He denied any involvement in the rape. The expert concluded
that R. had “guilty knowledge” with regard to the applicant’s rape and did not
make truthful submissions on the matter.
. On 15 October 2006
investigator B. dismissed the applicant’s request for genetic examination
noting as follows:
“The ... investigating authorities discern no grounds to grant
the [applicant’s] request. The sporadic spermatozoids discovered on the
applicant’s clothes have been destroyed in the course of the forensic testing.
Therefore, it is impossible to conduct genetic examination.”
On 1 November 2006 the case concerning the
applicant’s rape was disjoined from the case of robbery.
On 16 November 2006 the investigation was
suspended. In particular, the investigator noted as follows:
“On 16 November 2006 the 11 months’ time-limit established
for the preliminary investigation in this case expires. All the investigative activities
that could be carried out in order to establish the persons who have taken [the
applicant’s] purse and money and raped her have been completed. The possible theories
have been verified.
Having regard to the above and in compliance with
Article 208 § 1 of the Code of Criminal Procedure [impossibility
to identify the offenders].
I hereby decide
(1) To suspend the criminal investigation ... .”
The applicant appealed against the decision of
16 November 2006 alleging that the investigators had failed to take all
possible measures to identify the alleged perpetrators.
On 8 November 2007 the Chelyabinsk Leninskiy
District Court allowed the applicant’s complaint and quashed the decision of
16 November 2006. The court noted as follows:
“According to the case-file materials, the acting head of the
division for supervision of criminal investigation ... asked in writing that
the persons indicated by [the applicant] in her complaint should undergo a
polygraph test. Accordingly, the investigator was to subject R., P., Sh., Shk.,
[brothers] M., and K. to polygraph testing ... .
The investigator questioned only R. It was planned to subject
the other persons to polygraph testing ... . However, for reasons unknown,
these investigative activities have not been performed.
Having regard to the above, the court considers that the
investigator has failed to conduct all the investigating activities that could
have been performed pending the establishment of an accused or a suspect and
that his decision to suspend the investigation is unjustified.”
On 17 January 2008 the Chelyabinsk Regional
Court quashed the decision of 8 November 2007 on appeal and remitted the
matter for fresh consideration. The court noted as follows:
“The [District] Court’s conclusion [concerning the polygraph
testing] is erroneous. The questioning with the use of polygraph is not
provided for in the rules of criminal procedure and cannot be used as evidence
in the criminal case. Furthermore, as it follows from the materials in the
case-file, the prosecutor’s request [to conduct polygraph testing] was
contained in his letter which is not a procedural document and his request ...
is merely a recommendation.
In such circumstances, the [District] Court’s decision cannot
be found lawful and justified. It is to be quashed and the matter is to be returned
for fresh consideration.”
On 12 February 2008 the Chelyabinsk Leninskiy
District Court dismissed the applicant’s complaint and upheld the validity of
the investigator’s decision to suspend the investigation. The court reiterated
verbatim the reasoning contained in the appeal court’s decision of
17 January 2008.
On 5 May 2008 the Chelyabinsk Regional
Court upheld the said decision on appeal.
C. Civil claim for damages
On an unspecified date the applicant brought a
civil claim for damages against the authorities’ failure to conduct an
effective investigation into her complaint.
On 19 April 2006 the Chelyabinsk Tsentralniy
District Court allowed the applicant’s claim in part and awarded her 5,000
Russian roubles (RUB) in damages. The court noted that for five months the
investigators regularly dismissed her complaint about the rape while failing to
conduct a full inquiry into her allegations. The court found that such a delay
infringed the applicant’s right of access to court within a reasonable time.
On 30 May 2006 the Chelyabinsk Regional
Court upheld the judgment of 19 April 2006 on appeal.
On 4 October 2006 the Presidium of the Chelyabinsk Regional Court quashed the judgments of 19 April and 30 May 2006 by
way of supervisory review, and remitted the matter for fresh consideration.
On 25 October 2006 the District Court
dismissed the applicant’s claims in full. The court held that the applicant’s
allegations of wilful delays in the inquiry were not substantiated.
On 19 December 2006 the Chelyabinsk
Regional Court upheld the judgment of 25 October 2006 on appeal.
D. Sh.’s conviction
On 31 October 2006 Sh. was charged with
robbery in respect of the applicant.
. During the trial Sh. pleaded
guilty. The court questioned the applicant and witness P., the teenage girl the
applicant had met on the night of the assault. P.’s testimony was summarised in
the verdict as follows:
“During the night of 24 May 2005 someone knocked on the
door. She opened the door and saw Sh., her father’s acquaintance, and [the
applicant], whom she had not met before. Both of them were in a state of
alcoholic intoxication. She let them into the flat. [The applicant] was upset, she
was in tears. She was wearing jeans which were inside out. She suggested that she
and [the applicant] go into the bathroom to have a smoke, to talk and to get changed.
When [the applicant] took off her jeans she saw that [the applicant] had no
pants on. She realised that [the applicant] could have been raped. After that [the
applicant] and Sh. came into the kitchen to drink vodka. Her father drank with
them. She did not hear what they were talking about. But she went into the
kitchen to calm [the applicant] down when the latter was crying. [The
applicant] left about five a.m. For some reason, Sh. was holding her gold chain
on a pendant in his hand. ... [The applicant] asked him to give it back to her,
but Sh. refused to do so. Then [the applicant] asked her to open the door,
which she did. [The applicant] left. Sh. left some thirty minutes later.”
On 14 December 2006 the Chelyabinsk Leninskiy
District Court found Sh. guilty as charged and sentenced him conditionally to eighteen
months’ imprisonment.
II. RELEVANT DOMESTIC LAW
A. Criminal code of the Russian Federation
The Criminal Code defines “rape” as sexual
intercourse carried out by force or a threat of force to be used against the
victim or another person or by use of the victim’s helpless state
(Article 131 § 1).
Article 131 §§ 1 and 2 (b) punishes the offence
of rape committed by a group, whether or not organised and with or without
prior conspiracy, by imprisonment of up to fifteen years.
Article 132 §§ 1 and 2 (b) punishes other forced
sexual acts committed by a group, whether or not organised and with or without
prior conspiracy, with up to fifteen years of imprisonment.
B. Investigation of the crimes and victim status as
set forth in the Code of the Criminal Procedure of the Russian Federation
In response to a complaint of a criminal offence
an investigator is under an obligation to look into the complainant’s allegations
(Article 144).
Should there be sufficient grounds to believe
that a crime has been committed, the investigator initiates a criminal
investigation (Article 145).
The criminal investigation should not normally
exceed two months. This time-limit can be extended for up to three months. If
the matter is of extreme complexity, the investigation can be extended for up
to twelve months (Article 162).
The criminal investigation can be suspended if the
alleged perpetrator has not been identified (Article 208 § 1).
A person who has suffered damage as a result of
a crime is granted victim status and may take part in the criminal proceedings.
During the criminal investigation, the victim may submit evidence and lodge
applications. Once the investigation is completed, the victim has full access
to the case file (Article 42).
C. Instruction on the use of polygraph testing for
questioning purposes approved by Order no. 437 of the Ministry of the
Interior of the Russian Federation of 28 December 1994
Polygraph testing is used for questioning
purposes (§ 1.1). The information obtained as a result of such testing
cannot be used as evidence. It has a probable nature and can be used as
guidance only (§ 1.2). The use of polygraph testing helps (1) to gather
factual data necessary for prompt investigating activities and prevention and
solution of crimes; (2) to search for persons who absconded or disappeared; (3)
to verify data communicated by persons subject to questioning; and (4) to
establish whether persons questioned are involved in a crime (§ 1.5). The
data obtained as a result of polygraph testing can be used as guidance by
law-enforcement units in accordance with the Law on operative and investigating
activities.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE
CONVENTION
The applicant complained that the State had
failed to properly investigate the alleged rape. The Court considers that the
complaint falls to be examined under Articles 3 and 8 of the Convention,
which, in so far as relevant, read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect for his
private ... life ... . ”
The Government contested that argument. They
submitted that the domestic authorities had conducted an inquiry and a subsequent
official investigation into the applicant’s allegations in strict compliance
with the domestic law. The applicant had unlimited access to court and availed
herself of all remedies to protect her rights and interests. She had brought
her grievances to the attention of the competent court, which had assessed the lawfulness
and compliance of the investigation. The investigators had carried out a wide
range of actions aimed at identifying the alleged perpetrators. Numerous witnesses
had been questioned. Forensic evidence had been collected and analysed. The
fact that the perpetrators had not been established could not be interpreted as
the authorities’ failure to comply with their positive obligations set out in
Articles 3 and 8 of the Convention.
The applicant maintained her complaint.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. General principles
The general principles concerning the existence
of a positive obligation to punish rape and to investigate rape cases can be
summarised as follows (see M.C. v. Bulgaria, no. 39272/98, ECHR
2003‑XII):
“149. The Court reiterates that the obligation of
the High Contracting Parties under Article 1 of the Convention to secure to
everyone within their jurisdiction the rights and freedoms defined in the
Convention, taken together with Article 3, requires States to take measures
designed to ensure that individuals within their jurisdiction are not subjected
to ill-treatment, including ill-treatment administered by private individuals
(see A. v. the United Kingdom,
judgment of 23 September 1998, Reports of
Judgments and Decisions 1998-VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC],
no. 29392/95, §§ 73-75, ECHR 2001-V; and E.
and Others v. the United Kingdom, no. 33218/96, 26 November 2002).
150. Positive obligations on the State are inherent
in the right to effective respect for private life under Article 8; these
obligations may involve the adoption of measures even in the sphere of the
relations of individuals between themselves. While the choice of the means to
secure compliance with Article 8 in the sphere of protection against acts of
individuals is in principle within the State’s margin of appreciation,
effective deterrence against grave acts such as rape, where fundamental values
and essential aspects of private life are at stake, requires efficient
criminal-law provisions. Children and other vulnerable individuals, in
particular, are entitled to effective protection (see X and Y v. the Netherlands, judgment of
26 March 1985, Series A no. 91, pp. 11-13, §§ 23-24 and 27, and August v. the United Kingdom (dec.), no.
36505/02, 21 January 2003).
151. In a number of cases, Article 3 of the
Convention gives rise to a positive obligation to conduct an official
investigation (see Assenov and Others v.
Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102).
Such a positive obligation cannot be considered in principle to be limited
solely to cases of ill‑treatment by State agents (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no.
32967/96, ECHR 2002-I).
152. Further, the Court has not excluded the
possibility that the State’s positive obligation under Article 8 to safeguard
the individual’s physical integrity may extend to questions relating to the
effectiveness of a criminal investigation (see Osman
v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3164, § 128,).
153. On that basis, 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 and to apply them in
practice through effective investigation and prosecution.”
2. The scope of the Court’s review in the instant case
The Court observes that, in the instant case,
the applicant did not allege that Russian law, as such, did not provide
effective protection against rape. Rather, she maintained that the State had
not discharged its obligation to carry out an effective investigation of the
circumstances of her rape and to identify and punish the perpetrators. The
Court’s task is accordingly to ascertain whether the domestic authorities
applied the relevant criminal-law provisions in practice through effective
investigation and prosecution.
3. Application of the principles
The Court reiterates that, even though the scope
of the State’s positive obligations might differ between cases where treatment
contrary to Article 3 has been inflicted through the involvement of State
agents and cases where violence is inflicted by private individuals (see Beganović
v. Croatia, no. 46423/06,
§ 69, 25 June 2009), the requirements as to an official
investigation are similar. For the investigation to be regarded as “effective”,
it should in principle be capable of leading to the establishment of the facts
of the case and to the identification and punishment of those responsible. This
is not an obligation of result, but one of means. The authorities must have
taken the reasonable steps available to them to secure the evidence concerning
the incident, including, inter
alia, eyewitness testimony, forensic evidence, and so on. Any
deficiency in the investigation which undermines its ability to establish the
cause of injuries or the identity of the persons responsible will risk falling
foul of this standard, and a requirement of promptness and reasonable
expedition is implicit in this context (see, among many authorities, Mikheyev
v. Russia, no. 77617/01, 107 et seq., 26 January 2006,
and Assenov
and Others v. Bulgaria, judgment of 28 October 1998, Reports
1998-VIII, §§ 102 et seq.). In cases under Articles 2 and 3 of
the Convention where the effectiveness of the official investigation has been
at issue, the Court has often assessed whether the authorities reacted promptly
to the complaints at the relevant time (see Labita v. Italy
[GC], no. 26772/95, §§ 133 et seq., ECHR 2000-IV). Consideration has
been given to the opening of investigations, delays in taking statements (see Timurtaş v. Turkey,
no. 23531/94, § 89, ECHR 2000‑VI, and Tekin v. Turkey,
9 June 1998, § 67, Reports
1998-IV) and to the length of time taken for the initial
investigation (see Indelicato
v. Italy, no. 31143/96, § 37, 18 October 2001).
Turning to the facts of the instant case, the
Court observes that the authorities did respond to the applicant’s allegations
of rape. They conducted an initial inquiry to verify her allegations and then
opened a criminal case and instituted official investigation. The Court is not
convinced, however, that the measures taken by the authorities met the requirements
of Articles 3 and 8.
The Court notes from the outset that the
prosecuting authorities were particularly slow in instituting an official
criminal investigation into the circumstances of the case (see paragraphs 7-18
above). The prosecutor opened a criminal case only on 25 November 2005, five
months after the applicant’s initial complaint. Admittedly, the authorities
required a certain time to conduct a preliminary inquiry into the applicant’s
allegations. They arranged for the applicant to undergo a medical examination,
indispensable in rape cases. Her bodily injuries were documented and a smear
test was performed. The investigator questioned the applicant and certain
witnesses, who provided information on the events preceding and following the alleged
rape. Nevertheless, it appears from the materials in the case-file that the
investigator attached a significant weight to the applicant’s inebriated state
at the relevant time and inability to provide a clear account of the events.
Four times he rejected her allegations as unsubstantiated. Each time the
supervising prosecutor ordered the reopening of the inquiry, consistently
referring to the need for further work and a more thorough approach, which was,
however, ignored by the investigating authorities.
The Court does not lose sight of the
difficulties the authorities face when investigating sex crimes, due to the
particularly sensitive nature of the experiences sustained by victims. The
impact of such a trauma may affect a victim’s ability to coherently or fully recount
her experience. Indeed, the applicant was confused and provided contradictory
statements. There were no eyewitnesses or anyone volunteering information on
the issue. In such circumstances, the investigators were confronted with a
difficult task. Nevertheless, despite the measures carried out by the
authorities to elucidate the facts in the case, the Court cannot accept that
the scope of the initial inquiry was satisfactory.
In this connection, the Court cannot but notice
certain omissions on the part of the investigating authorities in the way they handled
the initial inquiry, when time was of essence to secure the evidence
effectively. No one visited or searched the crime scene. Nothing was done to
follow up on the information, albeit scanty, provided by the applicant in
respect of the alleged perpetrators. The applicant’s clothes were not collected
for forensic analysis. Nor was she offered psychological counselling or therapy
or her mental or emotional condition evaluated. Admittedly, most of these
measures were carried out later, during the official investigation, with
precious time already lost and producing little result.
The Court also takes into account the
supervising prosecutor’s review of the initial inquiry (see paragraph 19 above).
The prosecutor refused to uphold the investigator’s dismissal of the applicant’s
allegations as unsubstantiated. He found the applicant’s allegations to be
sufficiently serious to open an official criminal investigation in this
respect.
In this regard the Court observes that the
ensuing investigation and judicial review lasted from 25 November 2005 to
5 May 2008. The Court accepts that the investigators proceeded in a reasonably
diligent manner and the case was submitted to the judicial review within a year
once the criminal case was opened. Nevertheless, the Court discerns a number of
serious shortcomings in the investigators’ actions which were noted by the
supervising prosecutor. No identity parade took place, even though the
investigator questioned certain individuals suspected of involvement in the
rape. Some of the persons were not questioned despite the prosecutor’s
indication to do so (see paragraph 30 above). The Court finds it particularly
striking that P., a teenage girl who saw the applicant shortly after the
alleged rape, was never questioned by the police in this respect even though
her identity was known to investigators and she testified at the robbery trial
(see paragraph 48 above). Nor was there any follow-up as regards R.’s polygraph
test results, which showed that the latter had “guilty knowledge” in connection
with the applicant’s rape.
Lastly, the Court notes that at no time did the
investigator, despite the existence of DNA evidence (see paragraphs 22 and 28 above),
order its analysis. It was only upon the applicant’s initiative that he
considered such a possibility. He dismissed her request with a reference to the
destruction of the evidence in question (see paragraph 33 above). Without delving
into the issue of the validity of that argument furnished by the investigator,
the Court cannot but notice that the relevant forensic expert report contained a
conclusion to the contrary (see paragraph 28 above).
The above considerations coupled with the
overall duration of the investigation raise doubts as to the effectiveness of
the authorities’ response to the applicant’s allegations of rape and leave the
criminal proceedings in the case devoid of meaning.
The Court concludes that the respondent State has
failed to meet its positive obligations to conduct an effective investigation
and to ensure adequate protection of the applicant’s private life. There has accordingly
been a violation of Articles 3 and 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained that the
investigation of her complaint about the robbery had not been effective and
that her claim for damages had been dismissed.
However, having regard to all the material in
its possession, the Court finds that the events complained of do not disclose
any appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this part of the application must
be rejected as manifestly ill-founded pursuant to
Articles 35 § 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 100,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
excessive.
The Court observes that it has found a serious
violation in the present case. The authorities failed to comply with their
positive obligations to effectively investigate and punish rape. In such
circumstances, the Court considers that the applicant’s suffering and
frustration cannot be compensated for by merely finding a violation. Making its
assessment on an equitable basis, the Court awards the applicant EUR 12,500 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the
respondent State’s compliance with its positive obligations under
Articles 3 and 8 of the Convention admissible and the remainder of
the application inadmissible;
2. Holds that there has been a violation of
Articles 3 and 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 12,500 (twelve
thousand and five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Nina Vajić
Registrar President
