A.E.J. proti Rumunsku

FOURTH SECTION

CASE OF A.E.J. v. ROMANIA

(Application no. 33463/18)

JUDGMENT

STRASBOURG

30 August 2022

This judgment is final but it may be subject to editorial revision.

In the case of A.E.J. v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Yonko Grozev, President,
Iulia Antoanella Motoc,
Pere Pastor Vilanova, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 33463/18) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 July 2018 by a Romanian national, A.E.J., born in 2003 (“the applicant”), who was represented by Mr I. Dobre, a lawyer practising in Argeș County;

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 5 July 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The application concerns the lack of an effective criminal investigation into the applicant’s allegations of rape when she was a minor.

2. On 17 November 2015 the applicant’s parents lodged a complaint with the police claiming that their twelve-years old daughter (the applicant) had been raped the same day by a seventeen-years old boy, A.A.

3. An investigation for rape was opened and statements were taken from the applicant and her parents, in the presence of an ex officio lawyer on behalf of the applicant, from which it appeared that the applicant had met A.A. on Facebook and, after a while, agreed to meet in person. On 17 November 2015 A.A. waited for the applicant to finish school and went with her in an empty area behind the school where he raped her. In his statement A.A. claimed that he was the applicant’s boyfriend and had her consent for the sexual act. In support of his allegations, he submitted copies of messages exchanged with the applicant.

4. The medical examination of the applicant ordered by the police revealed signs of violence on the applicant’s body (excoriations on the legs and back) and signs of a recent defloration that may have dated from 17 November 2015. Blood was found on the applicant’s clothes.

5. After the collection of the above elements, the police decided to change the legal qualification of the crime under investigation from rape to sexual act with a minor, as defined by Article 220(1) and (2) of the Criminal Code.

6. In January 2016 the applicant’s representative submitted to the police a psychological examination that focused on the effects of the sexual act on the applicant and concluded that she had post-traumatic stress caused by the event under investigation. The representative also submitted an evaluation from the school attended by the applicant that attested to the fact that she was polite, respectful and disciplined and had very good school results.

7. On 18 January 2016 the prosecutor in charge with the investigation, considering that A.A. had not known the applicant’s age at the time of the event, changed again the legal classification of the crime to the less severely punished “sexual act with a minor aged between thirteen and fifteen”, defined by Article 220(1) of the Criminal Code.

8. On 5 April 2016, after a new change in the legal classification of the crime with a view to taking into account the perpetrator’s age as a mitigating circumstance, pursuant to Article 113(3) of the Criminal Code, and a new series of statements from the parties, the police concluded the investigation with the proposal that A.A. be sent to trial for the crime defined by Article 220(1) of the Criminal Code (see paragraph 7 above), applied in conjunction with Article 113(3) of the same code.

9. On 19 December 2016 the applicant, accompanied by her parents, lodged a new complaint alleging that she had been raped again by A.A. The applicant stated that A.A. had accosted her on her way home from school and forced her to have sex with him on an empty field. A.A. stated in his testimony that, initially, the applicant explicitly said she did not want to have sex with him, however, when he took her on an empty field she eventually agreed to sexual intercourse and even provoked him by saying that she loved him. Considering from the above statements that the applicant had given her consent to the sexual act, the police considered that there was no rape and opened an investigation under Article 220(1) of the Criminal Code (paragraph 7 above).

10. On 20 December 2016 A.A. was arrested until 20 January 2017 when he was placed under house arrest and ordered not to contact the applicant.

11. The medical examination ordered by the police found that the applicant had traumatic lesions in the genital area and on the back of her shoulder that may have been produced on 19 December 2016.

12. At the confrontation between the applicant and A.A. organised by the police, A.A. admitted that the applicant told him, during the encounter of 17 November 2015, that she was not ready to have sex.

13. On 14 February 2017 the investigation into the two complaints of rape (see paragraphs 2 and 9 above) was concluded and A.A. was sent to trial for the crime under Article 220(1) of the Criminal Code of a sexual act with a minor. The prosecutor listed the evidence collected that included statements given by the applicant, her parents and A.A. to the police, the medical reports, photos of the crime scene and transcripts of messages exchanged between the applicant and A.A. from which it appeared that the latter had declared his love and made explicit sexual proposals to the applicant, who replied in the same tone, using A.A.’s words. The prosecutor considered that in spite of certain evidence pointing to a rape (such as the statements made by the applicant and her family, the lesions on the applicant’s body and the places where the sexual acts happened), there was no evidence of sexual acts under constraint or by taking advantage of the victim’s lack of capacity to express her will. The prosecutor relied in this respect on the fact that the applicant had agreed to meet A.A. on 17 November 2015 in order to “love each other” and had continued to exchange messages with A.A. even after that date.

14. On 22 November 2017 the Pitesti Court of Appeal convicted A.A. with final effect of sexual act with a minor under Article 220(1) taken in conjunction with Article 113(3) of the Criminal Code and sentenced him to one‑year suspended sentence. The court further ordered A.A. not to contact the applicant or her family and to attend a rehabilitation course. The court focused its reasoning on the explicit sexual language used by the applicant in her messages to A.A. prior and after the first incident which, in the judges’ opinion, had showed that she had displayed a confusing attitude and had not categorically and explicitly refused to have sex with A.A. Therefore, the judges considered that the applicant had not been constrained to have sex with A.A.

15. In separate civil proceedings brought against A.A., the latter was ordered to pay the applicant a total amount equivalent of 6,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

16. Relying on Article 6 § 1 the applicant complained that the authorities had not investigated her allegations of sexual abuse effectively and had thus breached their positive obligation to protect her from inhuman and degrading treatment.

17. The Government contended that the investigation had been thorough and effective.

18. The Court notes that this complaint falls to be examined under Article 3 of the Convention (see I.C. v. Romania, no. 36934/08, § 61, 24 May 2016). Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

19. The general principles concerning the State’s positive obligation to provide effective protection from ill-treatment to children and other vulnerable persons and the relevant legal provisions, along with examples from the practice of the domestic courts and the relevant international material have been summarized in I.C. v. Romania (cited above, §§ 51-52 and 38-44 respectively; and, most recently, in X and Others v. Bulgaria [GC], no. 22457/16, §§ 176-92, 2 February 2021).

20. In similar previous cases, where the conclusions drawn by the domestic authorities appeared to have been based only on the statements given by the alleged perpetrators, without an examination of the validity of the applicant’s consent in the light of her age and vulnerability, the Court had concluded that those investigations 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 (see I.C. v. Romania, cited above, §§ 56, 57 and 60; M.G.C. v. Romania, no. 61495/11, §§ 68-75, 15 March 2016, and X and Others v. Bulgaria [GC] cited above, §§ 213 and 228).

21. Having examined all the material submitted to it, the Court has identified similar shortcomings in the investigation conducted in the current case: conclusions based solely on the statements of the suspect (see paragraphs 7 and 9 above); failure to conduct a context-sensitive assessment of the credibility of the statements made and a verification of all the surrounding circumstances that could have been done by questioning people known to the applicant and the perpetrator, such as friends, neighbours, teachers and others who could shed light on the trustworthiness of their statements or by seeking an opinion from a specialist psychologist (see I.C. v. Romania, cited above, § 54); delays in the investigation of the first complaint that allowed for a second act to take place; absence of any psychological examination of the applicant with a view to verify whether or not she had actually given her consent to the acts under investigation, to determine her capacity to give a valid consent and to understand the meaning of the words she had used in the messages relied on by the authorities when reaching their conclusion (see paragraphs 13 and 14 above); presence of stereotypes – already observed by the Court in previous cases (see M.G.C. v. Romania, cited above, § 38) – that the minor victim had provoked an older man into having sex (see paragraphs 9 and 13 above).

22. Having regard to the case-law on the subject and to the elements of the case-file, the Court considers that the shortcomings in investigation in the instant case (see paragraph 21 above) were such, that the investigation fell short of the requirements inherent in the States’ positive obligations to apply effectively a criminal-law system punishing all forms of sexual abuse against children (see M.G.C. v. Romania, §§ 60-75, and I.C. v. Romania, §§ 53-61, both cited above).

23. There has accordingly been a violation of the respondent State’s positive obligations under Article 3 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. The applicant asked the Court to award a fair and reasonable just satisfaction taking into account the facts of the case and the violation found.

25. The Government considered that applicant had already been granted civil damages by the domestic courts (see paragraph 15 above) and submitted that the finding of a violation would be sufficient compensation for any damage sustained.

26. The Court considers that the applicant had suffered non‑pecuniary damage on account of the lack of an effective investigation into her allegations of rape, damage that had not been compensated by the award of the domestic civil court that had a different purpose. Therefore, it awards her EUR 12,500 in that respect, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of the respondent State’s positive obligations under Article 3 of the Convention;
3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at 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.

Done in English, and notified in writing on 30 August 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Crina Kaufman Yonko Grozev
Acting Deputy Registrar President