Case of X v. Cyprus (Application no. 40733/22)

A selection of key paragraphs can be found below the judgment.

116. […] The Court reiterates that investigating authorities are under an obligation to take whatever steps they reasonably can to secure all available evidence about the incident they are investigating. In similar cases, the Court has expressed the opinion that it was for the authorities to explore all the facts and decide on the basis of all the surrounding circumstances. Notwithstanding its subsidiary role in the matter the Court has been particularly critical in rape allegation cases where the investigating authorities, faced with irreconcilable versions of facts, did not make a consistent effort to establish all the surrounding circumstances and to engage in a context-sensitive assessment of the credibility of the statements (see M.C. v. Bulgaria, cited above, §§ 176-77, and Z v. Bulgaria, no. 39257/17, § 74, 28 May 2020).

117. Furthermore, the Court attaches particular importance to the failure of the authorities in their central task of examining whether there had been consent. Neither the Chief Investigator nor the counsel for the Attorney General in the ensuing re-assessment of the investigation file engaged in any meaningful examination of the evidence which could signify a lack of consent. Their assessment made no mention of the testimonies that the applicant had consumed alcohol (see paragraphs 11 and 40 above) or of the traces of cocaine in her urine (see paragraph 23 above) and how that could have affected her capacity to consent. No mention was made of her express disagreement with the suggestion of having sex with some of the suspects (see paragraphs 38, 40 and 42, above); the fact that at least one of them (I.D.) had felt offended by the applicant (see paragraphs 38 and 40 above); the fact that the suspects had shown little regard for the applicant’s wish for privacy both on prior occasions (see paragraphs 9, 10, and 35 above) and on 17 July 2019 when they had persisted in entering the room despite being expressly asked to leave (see paragraphs 35, 40 and 70 above). No inquiry seems to have been made as to the steps the suspects took to ensure that the applicant consented to sex on 17 July 2019 but there was testimony to the effect that some of the suspects had hoped and expected that they would have sex with the applicant, assuming that they would be able to do so merely from her prior behaviour (see paragraphs 41 and 42 above).

118. Moreover, the police and subsequently the investigator took the suspects’ statements that no rape had taken place at face value despite testimony that S.Y. had said he would arrange for his friends to have sex with the applicant (paragraph 42 above); that certain suspects had crudely expressed their intention to have sex with the applicant on 17 July 2019 (see paragraph 43 above); that blood was found on a condom (see paragraph 58 above), on the hygiene pad worn by the applicant (see paragraph 23 above) and in the applicant’s vagina (see paragraphs 34 and 72 above), which could have signified abuse; that there were bruises on the applicant’s body (see paragraph 34 above) and scratches on S.Y.’s body (see paragraph 34 above); that there had been no prior relationship between the applicant and most of the other suspects; and the applicant’s behaviour after the incident (see paragraphs 44 and 46 above) (see, mutatis mutandis, Z v. Bulgaria, cited above, § 79). At the same time, the authorities made no mention of the inconsistencies in the suspects’ statements (see paragraphs 24, 28 and 38 above).

119. In this context the Court finds it difficult to accept the Government’s position that there had been no sufficient or satisfactory evidence which would warrant the initiation of a prosecution (see, mutatis mutandis,I.P. v. the Republic of Moldova, no. 33708/12, § 33, 28 April 2015). Rather, it appears that the authorities’ disinclination to pursue the investigation further or to initiate criminal proceedings had been based on the applicant’s sexual liberty and conduct. The applicant’s credibility appears to have been assessed through prejudicial gender stereotypes and victim-blaming attitudes (see the GREVIO report, cited at paragraph 85 above). By focusing on the applicant’s prior conduct, the authorities seemed to suggest by implication that because she had allegedly participated in group sexual activities before, she would not have refused to engage in such activities on the day of the alleged rape. The Court reiterates that circumstances concerning the victim’s behaviour or personality cannot excuse the authorities from the obligation to carry out an effective investigation (see D.J. v. Croatia, cited above, § 101).

122. The Court observes that the applicant, who at the time was eighteen years old and a foreigner, alone in Cyprus, was only referred to a psychologist on 19 July 2019, and even though she had been interviewed by a female police officer for her first two statements, that was done in the absence of a lawyer, a psychologist, or the social welfare services (see paragraphs 23 and 52 above). Her third statement was given to a male police officer, in the presence of the female police officer who had previously interviewed her and an officer from the social welfare services. Following six hours of investigation in the evening of 27 July 2019, the applicant retracted her complaint after midnight (see paragraph 53 above). Having regard to these circumstances, there is force in her argument that it was the long and repeated interviews which had led to the retraction (see paragraph 62 above).

123. The above, together with the numerous interviews the applicant had had to undergo repeating her statement to the authorities, also constitute evidence of re-victimisation through the authorities’ failure to adopt a victim‑sensitive approach and to conduct their investigation so as to mitigate distress to the applicant (see, mutatis mutandis, Y. v. Slovenia,no. 41107/10, § 109, ECHR 2015 (extracts), and X v. Greece, cited above, § 86. In this context the Court also refers to GREVIO’s recommendations, points 149-153 of the report cited in paragraph 85 above).

125. In conclusion, the Court observes that the present case reveals certain biases concerning women in Cyprus which impeded the effective protection of the applicant’s rights as a victim of gender-based violence and which, if not reversed, run the risk of creating a background of impunity, discouraging victims’ trust in the criminal justice system, despite the existence of a satisfactory legislative framework (see, mutatis mutandis, J.L. v. Italy, no. 5671/16, § 140, 27 May 2021).

126. Having regard to the numerous shortcomings identified above, the Court concludes, without expressing an opinion on the suspects’ guilt, that the investigative and prosecutorial authorities’ response to the applicant’s allegations of rape in the present case fell short of the State’s positive obligation to apply the relevant criminal provisions in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 153). There has accordingly been a violation of Articles 3 and 8 of the Convention.