CASE OF I.C. v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Iulia Motoc;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1992 and lives in Cotiglet, Romania. At the time of the events complained of, she was aged fourteen years and four months. 6. On 13 January 2007 the applicant was attending a funeral wake in her village. At around 8 p.m. she went with two girlfriends, P.A. (ten years old) and Z.F.D. (fourteen years old) to fetch some drinking water at a neighbour’s house. On their way, three boys, M.I.C. (fifteen years old), M.S. (fifteen years old) and M.C.S. (sixteen years old), approached the girls. M.I.C. pulled the applicant’s arm behind her back, grabbed her head and told her to go with him. The boys took her into the garden of a nearby deserted building, where a man, M.C. (twenty-two years old), was waiting. 7. The three boys left and M.C. pushed the applicant to the ground, partially undressed her and had sexual intercourse with her. In the meantime, another man, A.C.L. (twenty-six years old), arrived at the scene and tried to have sex with the applicant, but was physiologically incapable. A third man, V.F. (thirty years old) was also there. He had also intended to have sexual intercourse with the applicant but finally decided to help her get up, clean and dress herself, and accompanied her back to the house where the funeral wake was being held. Twenty minutes later the applicant’s father came looking for her and she told him that she had been raped. He immediately alerted the police. 8. The applicant underwent a forensic examination by a doctor on 14 January 2007. According to the subsequent forensic medical report, there were no signs of traumatic lesions on the applicant’s body and no sperm could be found either. The forensic doctor found signs of pathology which could have resulted from sexual intercourse. Lastly, the doctor mentioned that the applicant was in a state of anxiety and fear, and he recommended psychological counselling and possibly a neuropsychiatric examination. 9. On 15 February 2007 the applicant was admitted to the Oradea Psychiatric Hospital. The hospital observation sheet stated that the applicant had sought treatment because she had been raped. She was diagnosed with stress-related anxiety, irritability, a sleep disorder, slight intellectual disability (an IQ of 68) and lice infestation. She was prescribed treatment with anxiolytics and anti-depressives, and was discharged from hospital in a slightly improved condition on 20 February 2007. 10. On 5 March 2007 an additional forensic medical report was issued at the request of the applicant’s father. It stated that the applicant presented a psychological disorder caused by a physical and psychological trauma to which she had been exposed on 13 January 2007. The doctor held that, according to the documents presented by the Oradea Psychiatric Hospital, the applicant’s condition had required fourteen days of medical care. No signs of pregnancy had been detected. 11. On 24 April 2007 the applicant was readmitted to the Oradea Psychiatric Hospital. According to the hospital observation sheet, her state of health was slightly improving but she had started to have headaches. She was discharged from hospital the following day, having been told to continue the initial treatment and to return for further tests at the end of May. 12. In July 2007 the applicant was again hospitalised in the Oradea Psychiatric Hospital for fourteen days with symptoms including frontal headaches, depression, tearfulness and feelings of social isolation. She was diagnosed with an emotional disorder, a sleep disorder and anaemia, among other conditions. She received treatment with neurotropic drugs, anxiolytics and vitamins. The doctors prescribed further treatment with neurotropic drugs and anxiolytics until a follow-up examination scheduled for September. 13. On 14 January 2007 the applicant, accompanied by her father, lodged a formal complaint with the police. On the same day she made a written statement about the events of the previous day, accusing the three adult men involved in the incident of rape. She also mentioned that, all the way to the deserted house, M.I.C. and M.S. had held her by her arms and neck, not allowing her to leave, and had threatened to beat her if she screamed for help. The police accompanied the applicant and her father to the scene of the incident and took photographs. No objects or other evidence were found. 14. Later the same day, written statements were given to the police by M.C. and M.I.C. M.C. stated that he had not forced the applicant in any way and he had not been aware that she was under fifteen. He alleged that he had seen the applicant during the wake and had invited her to go with him to the deserted house, which she had done voluntarily. After he had had consensual sex with the applicant, he had left her in the company of M.C.S. and had returned to the wake. M.I.C. denied any involvement in the events, stating that he had not left the house where the wake had been held. 15. On 15 January 2007 A.C.L., V.F. and M.C.S. gave statements to the police. 16. A.C.L. stated that on the evening of 13 January 2007 he had been passing by the deserted house when he had heard noises coming from the garden. He decided to go inside to see what was happening. There he met V.F., who told him that M.C. was there with a girl. He saw M.C. on top of the applicant, having sex. After he had finished, M.C. called him to do the same thing. He tried, but was physiologically incapable of having sex so he stood up and put his clothes back on. He left together with M.C., who was waiting for him nearby. 17. M.C.S. stated that he had seen how M.I.C. had grabbed and twisted the applicant’s arm and had left with her from the wake. He had followed them together with M.S., but received a phone call and continued on a separate road. 18. In his statement, V.F. claimed that he had been at the wake when the applicant’s brothers had asked him to help them look for their sister. He left alone and went to the deserted house where he found the applicant with M.C. A.C.L. was also there. At that moment his phone rang so he did not pay attention to the three people. When he finished on the phone he heard the applicant calling him and went to her. She was alone, lying on the ground, undressed from the waist down. He asked her what had happened but she did not say anything. When she asked him to come closer, he started kissing her and wanted to have sex with her, but felt uneasy about it, so he helped her get dressed and clean up the mud on her coat, and accompanied her back to the wake. 19. On 17 January 2007 the applicant’s two girlfriends made statements to the police. They mentioned that M.I.C., M.S. and M.C.S. had approached the applicant, twisted her arm to her back and taken her with them. When she returned to the wake, the applicant did not tell them where she had been. P.A. also stated that she had heard the applicant shouting at the three boys to leave her alone. Z.F. had also seen the three boys surround the applicant and take her with them. 20. The applicant gave another detailed account of the facts in a statement drafted on 18 January 2007. She repeated that the three boys had forced her to go with them without saying where they were taking her, so she had not known what was going on. Once they arrived at the deserted house, there was M.C. who threatened to beat her if she would not accept to have sex with him. She further clarified that M.C.S. had kept her there by force until M.C. had raped her a second time. Then A.C.L. and V.F. came around and tried to rape her but failed and it was V.F. who had finally helped her leave the scene of the incident. Lastly, she mentioned that she had never had sex before the incident of 13 January and that M.C., A.C.L. and V.F. had known her and had been aware of her age. 21. M.S. stated to the police on 22 January 2007 that he had heard M.C. asking M.I.C. to take the applicant to the deserted house without telling her why. When the girls came out of the house where the wake was being held, he saw M.I.C. going after them and grabbing the applicant’s head, twisting her arm to her back and taking her in the direction of the deserted house. He denied having touched or spoken to the applicant. He had just walked behind her and continued on his way past the deserted house. M.C.S. gave the same account of the facts. 22. M.I.C. was questioned again on 22 January 2007, when he reconsidered his initial statement and told the police that M.C. had asked him, M.S. and M.C.S. to “grab” the applicant and take her to the deserted house. He then admitted having grabbed her by the arms, but claimed that afterwards she had walked along with him voluntarily. 23. On 6 February 2007 the police took another round of statements from those involved in the events, who reiterated their previous statements. In addition, all the men questioned stated that they knew for a fact that the applicant had had sex before with other men and that they had been unaware of her age at the time. 24. On 2 March 2007 the case was transmitted to the prosecutor’s office attached to the Bihor County Court in order for it to pursue the investigation into the crime of sexual intercourse with a minor. 25. On 26 April 2007 the applicant gave a statement before the prosecutor and requested that M.C., A.C.L., M.I.C., M.C.S. and M.S. be investigated for rape and complicity to rape. 26. M.C. and A.C.L. also gave brief statements before the prosecutor. M.C. claimed on this occasion that the applicant was the one who had sent word through M.I.C. that she wished to meet with him. A.C.L. stated that he knew the applicant had already had sex before and she had poor school results. 27. On 23 May 2007 the prosecutor indicted M.C. for the crime of sexual intercourse with a minor and A.C.L. for attempt to commit the same crime. The prosecutor based the decision on the following facts: the two men declared that they had not forced the applicant in any way; the forensic medical certificate attested to no signs of violence on the applicant’s body; and after returning to the wake she had not told her girlfriends what had happened to her. In view of those elements it was considered that the applicant had consented to have sex with M.C. and A.C.L. The witnesses, M.I.C., M.C.S. and M.S., did not know about M.C.’s intentions and therefore it was considered that they had no criminal responsibility in the case. The criminal proceedings were discontinued with respect to V.F. because he had not had sexual intercourse with the applicant. 28. The Beiuş District Court scheduled a first hearing in the case on 15 June 2007. The applicant stressed before the court that M.C. had twice had sexual intercourse with her without her consent. In support of her allegations, she submitted copies of the medical reports referred to in paragraphs 8-11 above. She also claimed civil damages for the suffering caused by the actions of the two defendants. 29. M.C. testified before the court that, once he had arrived at the funeral wake, M.I.C. had told him that the applicant was waiting for him at the deserted house. When he reached the meeting point, the applicant started kissing him and asked him to go with her to the back of the garden, away from the road. They then lay down on his coat and the applicant started undressing herself. They had sexual intercourse once, which was consensual. He did it because V.F. had told him once that he had had sex with the applicant in the past. Lastly, M.C. mentioned that he had done this before with other girls at other funeral wakes. 30. A.C.L. reiterated the statements he had given during the investigation. He concluded his testimony before the court with the remark: “... I was asked by someone in the village whether it was true what happened and whether I was not ashamed of what I had done, but I replied that it was not safe to leave girls alone on the streets.” 31. On 31 August and 28 September 2007 the court heard statements from the applicant’s two girlfriends, as well as from M.I.C. and M.C.S. In her testimony Z.F. claimed that the applicant had been scared when she had returned to the wake. She also mentioned that the applicant was a wellbehaved girl who did not go out with boys or go to bars. M.C.S. stated that he had heard the applicant asking M.I.C. to let go of her hand, but the latter had refused. 32. In his testimony M.I.C. also stated as follows: “The next morning we went to the police to give statements and afterwards I asked M.C. what had really happened. He then told me that he had raped her [the applicant]. He did not seem too happy about his actions. We have played this game before at another wake: you must take the girl to a secluded place where she must be kissed by the boy she chooses. When the defendant [M.C.] told me he had raped the victim, he also mentioned that he had kissed her.” 33. On 12 October 2007 the Beiuş District Court convicted M.C. of sexual intercourse with a minor and gave him a suspended sentence of one year and four months. A.C.L. was convicted of attempted sexual intercourse with a minor and given a suspended sentence of one year. 34. In reaching its decision the court firstly observed that the forensic medical report indicated that no signs of violence had been detected on the victim’s body. The court further established the course of the events on the evening of 13 January 2007 as described by M.I.C., M.C.S. and M.S. It cited the parts of the statements given by the applicant’s two girlfriends in which they had mentioned that the applicant had not cried for help. Lastly, the court concluded that the two defendants ought to have known that the injured party was under the age of fifteen. The court did not address the applicant’s statement, the medical reports attesting to her medical condition or her requests for the incident to be examined as rape. It rejected her claim for civil damages, considering that the medical conditions described in the forensic reports had no connection with the incident at issue. In addition, it had come to light from witness statements that the applicant had had sex before the impugned incident. 35. All parties to the trial, including the applicant represented by her lawyer, appealed against the decision of the Beiuş District Court. In her reasons for appeal the applicant claimed that the sexual abuse committed against her could only be classified as rape. She asked the court to extend the examination of the case to M.I.C., M.C.S. and M.S., whom she considered accomplices to rape. Lastly, the applicant considered that the medical reports submitted clearly attested to the suffering she had endured and therefore the court had erred in rejecting her claim for damages. 36. On 27 February 2008 the Bihor County Court decided to increase the sentences imposed on the two defendants to three years’ imprisonment for M.C. and eighteen months’ imprisonment for A.C.L. The decision of the Beiuş District Court concerning the classification of the crime and the suspension of the execution of the sentences was upheld. The County Court also decided to award the applicant 2,000 Romanian lei (RON) (approximately 600 euros (EUR)) in respect of non-pecuniary damage. In reply to the applicant’s reasons for appeal, the court reasoned: “It must be mentioned that the victim tried to convince the court that, in fact, she had not agreed to have sexual intercourse with the two defendants and that she had been the victim of a rape, but these allegations had not been proved in any way. Hence, the witnesses Z.F. and P.A. ... stated that ... the injured party had not cried for help ... and had not told them what had happened. ... It must also be noted that from the forensic medical report ... it does not appear that the injured party was the victim of a rape, since she displayed no signs of posttraumatic injury on her body.” 37. An appeal on points of law (recurs) lodged by the applicant against that judgment was rejected as ill-founded on 8 May 2008 by the Oradea Court of Appeal. The court declared briefly that by corroborating the victim’s statement with the forensic medical report of 14 January 2007, the existence of a crime of rape had been excluded in the case.