European Court of Human Rights
15 March 2016
Article 19: Protection from abuse and neglect
Article 34: Protection from sexual exploitation
Other international provisions:
European Convention on Human Rights, Article 3, 8
Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, Article 18, 36
Convention on Preventing and Combating Violence against Women and Domestic Violence, Article 56
Criminal Code Article 197(1): Defines rape as “sexual intercourse of any kind . . . by taking advantage of the victim’s lack of capacity to express [his/her] will . . .”
Crim. Code Art. 198(1): Defines sexual intercourse with a minor as “sexual intercourse of any kind, with a person . . . who is under 15 . . .”
Decree No. 31/1954 Art. 11(1)(a): Minors under 14 do not have the capacity to exercise rights and undertake obligations.
While visiting the house of a neighbouring family to play with two other children, an 11-year-old girl was raped multiple times over a 7-month period by relatives of the children, including a 52-year old man and four other minors. The girl became pregnant and eventually had an abortion. She later told police that she did not make the allegations after the first rape because she was ashamed and because the 52-year old had threatened to beat her if she told anyone.
The five suspects testified that the girl had always initiated the sex and was “always scantily dressed” when she went over to their house. The police noted, however, that the girl’s age precluded the existence of valid consent, and a forensic psychiatric report concluded that she showed signs of post-traumatic stress, had difficulties in foreseeing the consequences of her actions, and had insufficient discernment due to her age. Although the adult suspect was convicted of sexual intercourse with a minor, he was not convicted of rape because no signs of violence had been detected on the girl’s body, and the court credited the suspects’ testimony that the girl acted provocatively and initiated the sex. An appellate court later changed the conviction to rape, but—on further appeal—Romania’s high court reinstated the initial ruling, concluding that the girl had always initiated the sexual intercourse and therefore, it was not clear that she had not consented. In making this conclusion, the court did not discuss the forensic psychiatric report and dismissed the theory that the girl lacked capacity to consent.
The girl challenged this ruling and argued that the existence of laws that left open the possibility that an 11 year old could validly consent to a sexual act with a 52 year old amounted to a failure of the State to abide by its obligation to undertake measures to protect her integrity and private life of its citizens under the European Convention on Human Rights (“ECHR”).
Issue and resolution:
Access to justice for victims of sexual abuse. Whether Romania’s laws adequately protect minors from sexual assault in accordance with the ECHR, which requires States to safeguard an individual’s physical integrity. The European Court of Human Rights ruled that Romania had failed to sufficiently protect the girl from the abuse and so had violated her right to be free from inhuman and degrading treatment under Article 3 ECHR and the right to private life under Article 8 ECHR.
The Court observed that children and other vulnerable individuals are end to effective protection by the State from invasion of their private life, including from rape and sexual assault, and that the State must have efficient criminal laws in place to provide such protection. Prior cases have determined that States must penalise and prosecute non-consensual sexual acts, even in the absence of physical resistance by the victim.
The Court observed that, although there were two conflicting versions of the events and little direct evidence, the Romanian courts relied solely on the statements of the accused (concerning the alleged consent) and improperly disregarded the psychiatric evaluation that found the girl had difficulties foreseeing the consequences of her acts and making discernments. The Romanian court also did not explain why it relied on the statements of the accused over those of the girl, where the suspects were never questioned about the girl’s allegations that they had threatened her with violence. In addition, the courts did not properly consider the age difference between the girl and the 52 year old suspect, or whether the girl had any reasons to make a false accusation.
As a result, “the domestic courts failed to demonstrate a child-sensitive approach in analysing the facts of the case and held against the applicant facts that were, in reality, consistent with a child’s possible reaction to a stressful event, such as not telling her parents . . . the authorities failed to explore the available possibilities for establishing all the surrounding circumstances and did not assess sufficiently the credibility of the witnesses who had themselves been accused in the case or were related to those accused.” The Court also observed that “the authorities’ failure to investigate sufficiently the surrounding circumstances was the result of their having attached little or no weight at all to the particular vulnerability of young persons and the special psychological factors involved in cases concerning the rape of minors.”
The European Court concluded that the Romanian courts had not developed a settled and consistent practice to clearly differentiate between the crimes of rape and sexual intercourse with a minor. “[T]he approach taken by the national courts, in the context of a lack of a consistent national practice in the field, fell short of the requirements inherent in the States’ positive obligations to apply effectively a criminal-law system punishing all forms of rape and sexual abuse against children.” Accordingly, Romania had violated its positive obligation under Sections 3 and 8 of the ECHR.
Excerpt citing CRC and other relevant human rights
Regarding, more specifically, serious acts such as rape and the sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls to the member States to ensure that efficient criminal law provisions are in place (see, M.C. v. Bulgaria, cited above, § 153). This obligation also stems from a number of international instruments, such as Chapter VI, “Substantive criminal law”, of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse or Articles 19 and 34 of the United Nations Convention on the Rights of the Child.
CRIN believes this decision is consistent with the CRC. States must take all appropriate measures to protect children from all forms of violence ( Article 19). Where a child has suffered violence, States must ensure that the victim has effective access to justice and is able to obtain redress for the violation.
Application no. 61495/11
Link to full judgement:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.