M.C. v. Bulgaria

MC is a Bulgarian national born in 1980, who alleged that she was raped separately by two men, A and P, when she was 14 years old, within their car and within the home of a relative of theirs. MC had and tried to refuse and push the men away. The next morning MC went directly to the local hospital with her mother. The medical examiner found that her hymen had been freshly torn and that she had bruising and a grazed neck. Only the first alleged rape was reported at this time. The second rape was reported on 11 August 1995.

A and P both denied raping MC. On 14 November 1995, criminal proceedings were opened. No charges were brought in the course of the proceedings. No action was taken on the case between November 1995 and November 1996. On 18 December 1996, the investigator completed his work on the case. He found no evidence that P and A had used threats or violence and proposed that the prosecutor terminate proceedings. In January 1997 the District Prosecutor ordered an additional investigation, stating that the original investigation had not been objective, thorough and complete. The second finding was again that there was no evidence demonstrating the use of force or threats. The criminal proceedings were terminated on 17 March 1997 on this basis. In particular, because no resistance on MC’s part or attempts to seek help from others had been established.

On 23 December 1997, MC filed an application with the Commission and submitted written expert opinions which identified ‘frozen fright’ as the most common response to rape, where the victim either submits impassively or dissociates psychologically from the rape. Bulgarian law recognizes rape only in situations of helplessness or when the victim was coerced through the use or threat of force, evidenced by the victim resisting the attack. MC claimed that the authorities had not investigated the events of 31 July and 1 August 1995 effectively. MC alleged breaches of Arts 3 (prohibition of torture), 8(1) (right to private and family life), 13 (right to an effective remedy) and 14 (prohibition of discrimination).

[Adapted from INTERIGHTS summary, with permission]

The Court held that Bulgaria was in violation of Arts 3 and 8. States have a positive obligation inherent in Arts 3 and 8 to enact criminal laws that effectively punish rape and to apply them in practice through effective investigation and prosecution. This obligation requires the penalization and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim based on the universal trend towards regarding lack of consent rather than force as the essential element of rape and sexual abuse.

In the light of this, the Court noted that any rigid approach to the prosecution of sexual offences such as requiring proof of physical resistance in all circumstances risks leaving certain types of rape unpunished thus jeopardizing the effective protection of the individual’s sexual autonomy. In this case, there were shortcomings in the investigation of the incident because little was done to test the credibility of the version of events put forward by P and A and MC was not able to question witnesses whom she had accused of perjury. This was because there was an absence of ‘direct’ proof of rape such as traces of violence and resistance and the investigator and prosecutor had been centered on the issue of force rather than lack of consent;

The Court did not analyze the issue under Art 14.

[Adapted from INTERIGHTS summary, with permission]

“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 . . . .”

“163.  In  international  criminal law,  it  has  recently  been  recognised  that force  is  not  an  element  of  rape  and  that  taking  advantage  of  coercive circumstances  to  proceed  with  sexual  acts  is  also  punishable.  The International Criminal Tribunal for the former Yugoslavia has found that, in international  criminal  law,  any  sexual  penetration  without  the  victim's consent  constitutes  rape  and  that  consent  must  be  given  voluntarily,  as  a result  of  the  person's  free  will,  assessed  in  the  context  of  the  surrounding circumstances . . . . While  the  above  definition was  formulated  in  the  particular  context  of  rapes  committed  against  the population in the conditions of an armed conflict, it also reflects a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse.

164.  As submitted by the intervener, the evolving understanding of the manner in which rape is experienced by the victim has shown that victims of  sexual  abuse  –  in  particular,  girls  below  the  age  of  majority  –  often provide no physical resistance because of a variety of psychological factors or because they fear violence on the part of the perpetrator.”

“182.  The Court finds that the failure of the authorities in the applicant 's case to investigate sufficiently the surrounding  circumstances  was  the  result  of  their  putting  undue  emphasis on  “direct”  proof  of  rape.  Their  approach  in  the  particular  case  was restrictive,  practically  elevating  “resistance”  to  the  status  of  defining element of the offence.”

“177.  It  notes,  nonetheless,  that  the  presence  of  two  irreconcilable versions of the facts obviously called for a context-sensitive assessment of the  credibility  of  the  statements  made  and  for  verification  of  all  the surrounding circumstances. Little was done, however, to test the credibility of the version of the events proposed by P. and A. and the witnesses called by  them.  In  particular,  the  witnesses  whose  statements  contradicted  each other, such as Ms T. and Mr M., were not confronted. No attempt was made to establish with more precision the timing of the events. The applicant and her  representative  were  not  given  the  opportunity  to  put  questions  to  the witnesses whom she accused of perjury. In their decisions, the prosecutors did not devote any attention to the question whether the story proposed by P. and A. was credible, although some of their statements called for caution, such as the assertion that the applicant, 14 years old at the time, had started caressing  A.  minutes  after  having  sex  for  the  first  time  in  her  life  with another man (see paragraphs 16-65 above).”