CASE OF X AND Y v. THE NETHERLANDS
Violation of Art. 8;Non-pecuniary damage - financial award
C. Russo
7. Mr. X and his daughter Y were born in 1929 and on 13 December 1961 respectively. The daughter, who is mentally handicapped, had been living since 1970 in a privately-run home for mentally handicapped children. 8. During the night of 14 to 15 December 1977, Miss Y was woken up by a certain Mr. B, the son-in-law of the directress; he lived with his wife on the premises of the institution although he was not employed there. Mr. B forced the girl to follow him to his room, to undress and to have sexual intercourse with him. This incident, which occurred on the day after Miss Y’s sixteenth birthday, had traumatic consequences for her, causing her major mental disturbance. 9. On 16 December 1977, Mr. X went to the local police station to file a complaint and to ask for criminal proceedings to be instituted. The police officer said that since Mr. X considered his daughter unable to sign the complaint because of her mental condition, he could do so himself. The statement lodged by Mr. X read as follows: "In my capacity as father I denounce the offences committed by Mr. B on the person of my daughter. I am doing this because she cannot do so herself, since, although sixteen years of age, she is mentally and intellectually still a child." 10. The police officer drew up a report and it was signed by Mr. X (Articles 163 and 164 of the Code of Criminal Procedure). The officer subsequently informed the public prosecutor’s office that in the light of the father’s statement and of his own observations concerning the girl’s mental condition, she did not seem to him capable of filing a complaint herself. According to the headmaster of the school she was attending and another teacher there, she was unable to express her wishes concerning the institution of proceedings. 11. On 29 May 1978, the public prosecutor’s office provisionally decided not to open proceedings against Mr. B, provided that he did not commit a similar offence within the next two years. The official in charge of the case so informed Mr. X at a meeting on 27 September 1978. 12. On 4 December 1978, Mr. X appealed against the decision of the public prosecutor’s office to the Arnhem Court of Appeal, under Article 12 of the Code of Criminal Procedure; he requested the court to direct that criminal proceedings be instituted. In a supplementary memorial of 10 January 1979, he pointed out that subject to an exhaustive list of exceptions none of which applied in the instant case, a legal representative was entitled to act on behalf of the complainant. The Court of Appeal dismissed the appeal on 12 July 1979. In fact, it considered it doubtful whether a charge of rape (Article 242 of the Criminal Code; see paragraph 14 below) could be proved. As for Article 248 ter (see paragraph 16 below), it would have been applicable in the instant case, but only if the victim herself had taken action. In the Court of Appeal’s view, the father’s complaint (Article 64 para. 1 of the Criminal Code; see paragraph 16 below) could not be regarded as a substitute for the complaint which the girl, being over the age of sixteen, should have lodged herself, although the police had regarded her as incapable of doing so; since in the instant case no one was legally empowered to file a complaint, there was on this point a gap in the law, but it could not be filled by means of a broad interpretation to the detriment of Mr. B. 13. By virtue of Article 445 of the Code of Criminal Procedure, there was no possibility of appealing on a point of law to the Supreme Court (Hoge Raad) against this decision. 14. As regards sexual offences, the Netherlands Criminal Code makes a distinction between rape (Article 242) and indecent assault (Article 246), recourse to physical violence also being a constituent element of the latter offence. 15. Other more specific provisions afford in this area protection to certain categories of persons whose age, position of dependence or physical incapacity renders it difficult or impossible for them to determine or impose their wishes. Articles 244 and 245, respectively, make it a criminal offence to have sexual intercourse with a girl under the age of twelve or with a girl between the ages of twelve and sixteen, and under Article 247 it is a criminal offence to commit an indecent assault on boys or girls under the age of sixteen. Articles 243 and 247 concern, respectively, sexual intercourse with, and indecent assault on, a woman known to the offender to be unconscious or helpless. According to the Supreme Court, however, the word "helpless" refers only to physical incapacity. Article 249 relates to indecent acts committed with a minor who is in a position of dependence vis-à-vis the perpetrator. Finally, Article 239 concerns indecency, either in public or while another person is present against his will. Save for Article 245, none of these provisions makes the institution of criminal proceedings conditional on the filing of a complaint by the victim. 16. The same does not apply to Article 248 ter, whereby a sentence of not more than four years’ imprisonment may be imposed on any person who, "through gifts or promises ..., through abuse of a dominant position resulting from factual circumstances, or through deceit, deliberately causes a minor of blameless conduct to commit indecent acts with him or to suffer such acts from him": in a case of this kind, the offender can be prosecuted only on complaint by the actual victim. Under Article 64 para. 1, however, the legal representative may lodge the complaint on behalf of the victim if the latter is under the age of sixteen or is placed under guardianship (curateele); this latter institution exists only for persons who have reached the age of majority, namely twenty-one (Article 378, Book I, of the Civil Code). 17. At the hearings, counsel for the Government informed the Court that the Ministry of Justice had prepared a Bill modifying the provisions of the Criminal Code that related to sexual offences. Under the Bill, it would be an offence to make sexual advances to a mentally handicapped person.