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X and Y v. the Netherlands

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Court/Judicial body: European Court of Human Rights

Citation: Application no. 8978/80
Date: 26 March 1985
Instrument(s) cited: European Convention on Human Rights: Article 3 (Prohibition of torture); Article 8 (Right to respect for private and family life); Article 13 (Right to effective remedy); and Article 14 (Prohibition of discrimination)

Case summary

Background: Y resided in a privately-run home for children with mental disabilities. The day after her 16th birthday she was raped by the son-in-law of the home’s director. Y’s father, Mr. X, reported the rape to the police on her behalf because Y was unable to do so independently given her mental status. The public prosecutor decided not to open proceedings against Mr. B, provided that he did not commit a similar offence within the next two years. Mr. X appealed against this decision to a national court asking that criminal proceedings are instituted. The court refused to make such an order because victims over the age of 16 should lodge complaints of crimes themselves and the law did not say whether the father can complain on the child’s behalf. Mr. X then complained to the European Court on Human Rights that the failure to prosecute Y’s rapist violates the European Convention on Human Right’s Article 3 (freedom from inhuman or degrading treatment), 8 (right to respect for family life in that parents must be able to have recourse to remedies in the event of their children being the victims of sexual abuse, particularly if the children were vulnerable), 13 (right to an effective remedy) and 14 (right to non-discrimination).

Issue and resolution: The Court ruled unanimously that there was a violation of Y’s Article 8 right to private and family life.

Court reasoning: The government noted the difficulty to lay down legislation in criminal law for the protection of the people with mental disabilities as such measures may lead to disproportionate paternalism and unintended interference with other aspects of the right to private and sexual life. They argued that the Mr. X and Y had an appropriate remedy in civil law. The Court found the protection afforded by civil law to be insufficient where fundamental values and essential aspects of private life are at stake. Effective deterrence from committing further crimes is indispensable and can only be achieved by criminal law. Therefore, the Netherlands criminal code provision that required  a complaint to be made by the actual victim before criminal proceedings can be instituted presented a clear procedural gap in the law in respect of minors and the people with a mental disability and did not provide Y with practical and effective protection. Y was therefore the victim of a violation of Article 8 of the Convention. Since a violation was already established in relation to Article 8, the Court did not rule on the other grounds of complaints. Impact: The Netherlands Criminal Code was amended following the decision. See Section 61(1) which states: “If the person… has not yet reached the age of sixteen years or has been placed under guardianship for reasons other than prodigality, or is suffering from mental disease or defect to such an extent as to be incapable of deciding for himself whether it is in his interest to file a complaint, his legal representative in civil matters shall file the complaint.”

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