28 Feb The State’s positive obligation to conduct an effective investigation into the alleged rape

In the case of Y v. Bulgaria (no. 41990/18, 20.02.2020) the European Court of Human Rights found a violation of the positive obligation under Articles 3 and 8 of the European Convention on Human Rights. The applicant, Ms Y, is a Bulgarian national who was born in 1964 and lives in Haskovo (Bulgaria). The case concerns the authorities’ efforts to investigate the applicant’s allegations of rape and, in particular, whether they had failed to follow an obvious line of inquiry revealed by DNA evidence. 

Ms Y alleges that she was raped on the outskirts of Sofia. The police collected physical evidence from both the scene of the rape and the applicant (clothes and swabs). The police identified a potential suspect, Mr X, a man who lived in lodgings a few hundred metres from the scene of the rape. Mr X denied being the assailant however, maintaining that he had been at home in his lodgings at the time of the assault. Five months later the results of the DNA tests threw up a second potential suspect, Mr Z, a construction worker who also lived near the rape scene. The investigator questioned Mr Z who denied having any sexual contact with the applicant. The prosecuting authorities decided to suspend the investigation, finding that although the applicant’s allegations of rape were credible, it was impossible to identify the assailant or to establish with any degree of certainty that an offence had been committed. In 2019 the applicant sought judicial review of the decision to suspend the investigation, without success. The applicant complained that the investigation into the rape had been dragging on since July 2013 without the authorities identifying or bringing to justice her assailant. 

The Court examined the case under Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private life). 

The Court found that the state failed to properly pursue a line of inquiry which was obvious. It does not appear that the authorities made any subsequent attempts to establish the whereabouts of Mr Z at the time of the assault. Nor did they try to find other evidence about the relations, if any, between Mr Z and the applicant, or conversely, to check whether there was an alternative explanation for the discovery of his DNA on her briefs, or to verify the reliability of that DNA evidence. It is true that the applicant herself did not press for the pursuit of this line of inquiry, but the obligation to investigate effectively is not limited to specific requests by the alleged victim. Indeed, the Court has held, that such a requirement is inherent in the authorities’ procedural obligations and does not depend on the initiative of a complainant to take responsibility for the conduct of investigatory procedures. This is especially so in cases, such as the one at hand, in which the authorities are aware of the complainant’s particular psychological vulnerability.

The lack of an effective criminal investigation into the applicant’s allegations cannot be made good by the possibility for her to bring claims for damages against the people allegedly responsible for her rape. It is settled that the positive obligation under Articles 3 and 8 of the Convention to ensure effective protection against rape calls for measures of a criminal-law nature. There has therefore been a breach of the respondent State’s positive obligations under both Articles 3 and 8 of the Convention.

References from the official website of the European Court of Human Rights