Rape as a Human Rights violation and a criminal offence: The European court's judgment in M.C. v. Bulgaria

Journal of International Criminal Justice

Volumn 3, Issue 2, 2005, Pages 447-462

  Pitea, Cesare ^a,b,c  

^a UNIVERSITY OF PARMA   (Italy)

^b UNIVERSITY OF MILAN   (Italy)

^c UNIVERSITY OF LONDON   (United Kingdom)

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[No Author keywords available]

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EID: 26844434478     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi037     Document Type: Note

References (70)

1. M.C. v. Bulgaria (No. 39272/98), judgment of 4 December 2003, not yet published.
2. Interights was granted a leave to intervene as a third party under Art. 36(2) of the Convention and former Rule 61(3) of the Rules of Procedure. The brief is available online at www.interights.org/news/ MCvBulgariaamicus.htm (visited 21 January 2005). On the practice of NGO intervention before the European Court of Human Rights, see A.-K. Lindblom, The Legal Status of Non-Governmental Organisations in International Law (Uppsala: Uppsala Universitet, 2001), 305-320
3. and N. Vajic,'Some Concluding Remarks on NGOs and the European Court of Human Rights', in T. Treves et al. (eds), Civil Society, International Courts and Compliance Bodies (The Hague: TMC Asser Press, 2005) 93-104.
4. The ICTY itself, in defining rape as a form of torture in the Mucic trial, relied extensively on the jurisprudence of the European Court of Human Rights, and particularly on Aydin v. Turkey (No. 23178/94), judgment of 25 September 1997, ECHR Reports (1997-VI). See ICTY, Judgment, Mucic et al. (IT-96-21-T), Trial Chamber, 16 November 1998, §§ 466 and 487.
5. The Bulgarian Criminal Code defines rape as 'sexual intercourse with a woman: (1) incapable of defending herself, where she did not consent; (2) who was compelled by means of force or threats; (3) who was brought to a state of defencelessness by the perpetrator'. This provision has been interpreted by Bulgarian Courts and scholars as embodying lack of consent to the intercourse as an inherent element. The three subparagraphs, each embodying a different case of lack of consent, are alternative, and not cumulative, elements of the crime. See the Court's review of domestic law and practice, M. C. v. Bulgaria, supra note 1, §§ 72-86.
6. The Court makes reference, as far as Art. 3 is concerned, to A. v. the United Kingdom (No. 25599/94), judgment of 23 September 1998, ECHR Reports (1998-VI), §22, Z. and others v. the United Kingdom [GC] (No. 29392/95), judgment of 10 May 2001, ECHR Reports (2001-V), §§ 73-75 and E. and others v. the United Kingdom (No. 33218/96), judgment of 26 November 2002. As far as Art. 8 is concerned, reference is made to August v. the United Kingdom (No. 36505/02), decision of 21 January 2003, not published and X. and Y. v. the Netherlands (No. 8978/80), judgment of 26 March 1985, ECHR (1985), Series A, No. 85, §§ 23, 24 and 27.
7. Each of the following sources is reviewed in fair detail in the judgment section dedicated to the 'relevant comparative and international law and practice' (M.C. v. Bulgaria, supra note 1, §108) and, in addition, is specifically mentioned in the reasoning of the judgment (ibid., §163).
8. See supra note 2.
9. Adopted by the Committee of Ministers on 30 April 2002 at the 794th meeting of the Ministers' Deputies. Available online at https://wcm.coe.int/ViewDoc.jsp?id=280915&Lang=en (visited 20 January 2005).
10. The Court refers to the failure to explore all the available possibilities in establishing surrounding facts and assessing the credibility of conflicting statements (ibid., §§ 177-178) and to the underestimation of the fact that the victim was deliberately misled in order to isolate her, in assessing the mens rea (ibid., §180).
11. In this respect, the Court reiterates its previous finding that 'effective protection against rape and sexual abuse requires measures of a criminal-law nature', ibid., §186 (emphasis added).
12. It is the traditional view that the concept of human rights serves the interest of individuals to be protected from abuses by the state and that criminal law is one of the areas where such protection is more needed; see W.A. Schabas, 'Droit penal et droit international des droits de l'homme: Faux frères?', in M. Henzelin and R. Roth (eds), Le droit penal à l'épreuve de l'internationalisation (Paris: LGDJ; Genève: Georg; Bruxelles: Bruylant, 2002) 165-181, at 165-167 (arguing that the move towards criminalization of human rights law after the Velásquez-Rodríguez decision of the Inter-American Court of Human Rights - judgment of 29 July 1988, Series C, No. 4 - has created some contradiction between international human rights law and its original function).
13. On positive obligations under the Convention, see A. Clapham, 'The "Drittwirkung" of the Convention', in R. St. J. Macdonald, F. Matscher and H. Petzold (eds), The European System for the Protection of Human Rights (Dodrecht, etc.: Martinus Nijhoff, 1994) 163-206;
14. D. Spielmann, 'Obligations positives et effet horizontal des dispositions de la Convention', in F. Sudre (ed.), L'interprétation de la Convention Européenne des droits de l'homme (Bruxelles: Bruylant, 1998) 133-174;
15. F. Sudre, 'Les obligations positives dans la jurisprudence européenne des, droits de l'homme', in P. Mahoney et al. (eds), Protection des droits de l'homme: La perspective européenne. Protecting Human Rights: The European Perspective - Mélanges à la mémoire de Rolv Ryssdal (Köln, etc.: Heymanns, 2000) 1359-1376;
16. B. Conforti, Reflections on State Responsibility for the Breach of Positive Obligations: The Case-Law of the European Court of Human Rights, 23 Italian Yearbook of International Law (2005), forthcoming.
17. See, among others, McCann v. the United Kingdom [GC] (No. 18984/91), judgment of 27 September 1995, ECHR (1995), Series A, No. 324; Osman v. the United Kingdom [GC] (No. 23452/94), judgment of 28 October 1998, ECHR Reports (1998-VIII), §128; Assenov and others v. Bulgaria (No. 24760/94), judgment of 28 October 1998, ECHR Reports (1998-VIII), § 102; McKerr v. the United Kingdom (No. 28883/95), judgment of 4 May 2001, ECHR Reports (2001-III), §§ 111-115.
18. On positive obligations in the area of criminal law, see A. Mowbray, 'Duties of Investigation under the European Convention on Human Rights', 51 International and Comparative Law Quarterly (ICLQ) (2002) 437-448,
19. and, extensively, F. Bestagno, Diritti umani e impunità. Obblighi positivi degli Stati in materia penale (Milano: Vita e Pensiero, 2003).
20. See, among others, X. and Y. v. the Netherlands, supra note 5, §27 and Kiliç v. Turkey (No. 22492/93), judgment of 28 March 2000, ECHR Reports (2000-III), §62.
21. Aydin v. Turkey supra note 3.
22. See supra note 5.
23. X. and Y. v. the Netherlands, supra note 5.
24. An example can be drawn from the legislative iter of the proposed Art. 613 bis of the Italian Criminal Code, which should introduce the crime of torture into the Italian legal system. The Camera dei Deputati has in fact voted an amendment to the text originally proposed, defining the crime as an act requiring, inter alia, 'violence or reiterated threats'. The element of reiteration, not required by the definition given by the UN Convention Against Torture or by the jurisprudence of the European Court of Human Rights, would be introduced into the domestic definition of the crime.
25. See the verbatim records of the parliamentary debate in Camera dei Deputati, Resoconto stenografico dell'Assemblea, Seduta n. 455 del 22/4/ 2004, at 33-48, available online at www.camera.it (last visited 27 July 2004). After opposition against such a definition, the parliament stepped back, and subsequent drafts examined by a competent parliamentary Commission included a different wording. See Proposta di legge n. 4990, 11 May 2004, available online at www.camera.it (last visited 27 July 2004).
26. In Streletz, Kessler and Krenz v. Germany (Nos 34044/96, 35532/97 and 44801/98), judgment of 22 March 2001, ECHR Reports (2001-II), §81, the Court stated that '[i]t is legitimate for a State governed by the rule of law to bring criminal proceedings against persons who have committed crimes under a former regime', but remained silent over the existence of a duty to do so. In Vo v. France [GC] (No. 53924/00), judgment of 8 July 2004, not yet published, §91, where the negligence of a doctor caused the applicant to have to undergo a therapeutic abortion, the applicant alleged a violation of Art. 2 of the Convention on the ground that the conduct of the doctor who was responsible for the death of her child in utero was not classified as unintentional homicide. However, the Court was not asked to find whether the impossibility of securing the conviction of the doctor for causing personal injury to the mother, because of an amnesty covering the offence, could be a violation of the Convention. The issue was tackled more directly by the European Commission on Human Rights (the Commission), in relation to an amnesty law passed by the French National Assembly for crimes committed in New Caledonia before granting self-determination status to the territory. The Commission found the 'the crime of murder may be covered by an amnesty. That in itself does not contravene the Convention unless it can be seen to form part of a general practice aimed at the systematic prevention of prosecution of the perpetrators of such crimes' and that '[t]he State is justified in adopting, in the context of its criminal policy, any amnesty law it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public in having the right to life protected by law';
27. see Dujardin and others v. France (No. 16734/90), decision of 2 September 1991, 72 Decision and Reports, 236, at 243-244.
28. August v. the United Kingdom, supra note 5. The applicant - a child with a personal history of domestic sexual abuses and placed under the custody of the state - had been involved, at the age of 13, in episodes of homosexual prostitution with an adult. After the latter had been prosecuted and convicted, the applicant applied for compensation under a domestic statute, but compensation was refused on the ground that he was not a victim, since he had cooperated actively in the commission of the crime.
29. Ibid., §1.
30. As far as unintentional acts are concerned, a more flexible approach is taken; see Calvelli and Ciglio v. Italy (No. 32967/96), judgment of 17 January 2002, ECHR Reports (2002-I), §§ 51-52 and Vo v. France, supra note 19, §90.
31. Aydin v. Turkey supra note 3, §83.
32. On the relevance of the classification of the perpetrator as a public official in the definition of torture, see generally F. De Vittor, 'La partecipazione del pubblico ufficiale quale elemento della definizione del crimine di tortura: In margine al caso Kunarac', 87 Rivista di Diritto Internazionale (2004) 427-451.
33. Aydin v. Turkey supra note 3, especially Reflections on State Responsibility for the Breach of Positive, §§ 83 and 86.
34. Dudgeon v. the United Kingdom (No. 7525/76), 22 October 1981, ECHR (1981), Series A, No. 45, reprinted in 2 Human Rights Law Journal (HRLJ) (1981) 362.
35. Laskey, Jaggard and Brown v. the United Kingdom (Nos 21627/93, 21826/93 and 21974/93), judgment of 19 February 1997, ECHR Reports (1997-1), § 51. Having found that the prosecution of the applicants was justified under the 'protection of health' heading, the Court found it unnecessary to find whether it could be justified under the heading of 'protection of public morals'. However, it added that this finding 'should not be understood as calling into question the prerogative of the State on moral grounds to seek to deter acts of the kind in question'.
36. X. and Y. v. the Netherlands, supra note 5. The case concerned the impossibility of filing a criminal complaint for alleged rape on behalf of a victim who was over the age of 16 and was not legally capable of lodging the complaint on her own.
37. Supra, Section 2.
38. See J. Callewaert, 'Is There a Margin of Appreciation in the Application of Articles 2, 3 and 4 of the Convention?', 19 HRLJ (1998) 6-9.
39. For an overview of the application of the doctrine, its possible legal basis and rationale, see generally, but not exhaustively, R. Sapienza, 'Sul margine di apprezzamento statale nel sistema della Convenzione europea dei diritti dell'uomo', 74 RDI (1991) 571-614;
40. J.G. Merrils, The Development of International Law by the European Court of Human Rights (Manchester: Manchester University Press, 1995), at 151-156;
41. R.St.J. Macdonald, 'The Margin of Appreciation', in R.St.J. Macdonald, F. Matscher and H. Petzold (eds), supra note 12, at 83-124;
42. the proceedings of the Seminar organized by the Registry of the Court on the topic 'The Doctrine of the Margin of Appreciation under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice', 19 HRLJ (1998) 1-36;
43. M.R. Hutchinson, 'The Margin of Appreciation Doctrine in the European Court of Human Rights', 48 ICLQ (1999) 638-650.
44. The Court has used it mainly in relation to the derogation clause contained in Art. 15 (see M. O'Boyle, 'The Margin of Appreciation and Derogation under Article 15: Ritual Incantation or Principle?', 19 HRLJ (1998) 23-29), to the rights expressly subject to a limitation clause (Arts 8-11 and Art. 1 of Protocol No. 1)
45. (see C. Ovey 'The Margin of Appreciation and Article 8 of the Convention', 19 HRLJ (1998) 10-12;
46. S. C. Prebensen, 'The Margin of Appreciation and Articles 9, 10 and 11 of the Convention', 19 HRLJ (1998) 13-17;
47. and Y. Winisdoerffer, 'Margin of Appreciation and Article 1 of Protocol No. 1', 19 HRLJ (1998) 18-19) and, finally, to the non-discrimination principle
48. (see J. Schokkenbroek, 'The Prohibition of Discrimination under Article 14 of the Convention and the Margin of Appreciation', 19 HRLJ (1998) 20-22).
49. This has indeed been indicated by the Court in its early jurisprudence: Handyside v. the United Kingdom (No. 5493/72), judgment of 7 December 1976, ECHR (1976), Series A, No. 24, §48, at 22; Sunday Times v. the United Kingdom (No. 6538/74), judgment of 26 April 1979, ECHR (1979), Series A, No. 30, §59, at 36.
50. See Merrils, supra note 31, at 151 (defining the margin of appreciation as the 'simple idea' according to which 'in respect of many matters the Convention leaves the Contracting Parties an area of discretion').
51. See Merrils, supra note 31, at 167-168
52. and P. van Dijk, '"Positive Obligations" Implied in the European Convention of Human Rights: Are the States still the "Masters" of the Convention?', in M. Castermans-Hollemans, F. van Hoof and J. Smith (eds), The Role of the Nation-State in the 21st Century. Human Rights, International Organisations and Foreign Policy. Essays in Honour of Peter Baehr (The Hague, Boston, London: Kluwer Law International, 1998) 17-33, at 22-23.
53. See Airey v. Ireland (No. 6289/73), judgment of 9 October 1979, ECHR (1979), Series A, No. 32, §26, at 15 (the obligation to provide effective access to Courts ex Art. 6(1) 'leaves to the State a free choice of means to be used towards this end.... In any event it is not the Court's function to indicate, let alone dictate, which measures should be taken');
54. Limitation clauses, such as those contained in the second paragraph of Arts 8-11 and in Art. 2(3) Protocol No. 3, allow some restriction of the right concerned in pursuance of specified societal concerns, provided that a fair balance is struck between the individual right and the general interest. Although expressed in different terms a limitation clause can be found in other provisions, such as Art. 6(1) and Art. 1 Protocol No. 1.
55. Van Dijk, supra note 35, at 24.
56. In Rees v. the United Kingdom (No. 9532/81), judgment of 17 October 1986, ECHR (1987), Series A, No. 106, §37, at 15, the Court found that the limitation clause contained in Art. 8(2) 'refers in terms only to "interferences" with the rights protected by the first paragraph - in other words is concerned with the negative obligations flowing therefrom'.
57. Van Dijk, supra note 35, at 24-25.
58. But see, on the existence of implied restrictions, L. Caflish and A.A. Cançado Trindade, 'Les Conventions américaine et européenne des droits de l'homme et le droit international', 108 Revue Générale de Droit International Public (2004) 5-61, at 10-11. However, it should be noted that in the case law referred to by the authors, the existence of implied limitations is recognized in relation to certain specific features of the rights at stake and of their formulation. The notion of 'implied limitations' has also been used by the European Commission of Human Rights, to define the legal status of abortion under the right to life; see X v. the United Kingdom (No. 8416/79), decision of 13 May 1980, DR 19, 244, at 253.
59. Stjerna v. Finland (No. 18131/91), judgment of 25 November 1994, ECHR (1994), Series A, No. 299-B, at 67. The same approach is shared and expanded by van Dijk, supra note 35, at 25-26.
60. Indeed, in a subsequent case, the Court has used this expression in the framework of Art. 2, by stating that 'the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention', Vo v. France, supra note 19, §82.
61. See also the Dissenting Opinion of Judge Ress, ibid.
62. On the non-applicability of the margin of the appreciation doctrine to Art. 3, see generally Callewaert, supra note 30, at 8, and, with specific reference to positive obligations, Van Dijk, supra note 35, at 26-27.
63. And, with specific reference to positive obligations, Van Dijk, supra note 35, at 26-27.
64. See Chahal v. the United Kingdom (No. 22414/93), judgment of 15 November 1996, ECHR Reports (1996-V), §§ 79 and 81 (stating that in the context of extradition proceedings, there is no room 'for balancing the risk of ill-treatment against the reasons for expulsion whether a State's responsibility under Article 3 is engaged').
65. Tyrer v. the United Kingdom (No. 5856/72), judgment of 25 April 1978, ECHR (1978), Series A, No. 26, §31, at 15-16.
66. See also A. Cassese, 'Prohibition of Torture and Inhuman or Degrading Treatment', in R.St.J Macdonald, F. Matscher and H. Petzold (eds), supra note 31, 225-261, at 254-255 (arguing that in the interpretation and application of Art. 3, 'social perceptions may be taken into account only for pre-legal purposes').
67. See extensively Merrils, supra note 31, at 98-124.
68. See Airey v. the United Kingdom, supra note 36, §24.
69. The expression is borrowed from Callewaert, supra note 30, at 8 (arguing that this activity is the essence of a decision about a violation of Art. 3). In fact, reference to 'developments and commonly accepted standards in the penal policy of member States of the Council of Europe' was made by the Court in Tyrer, supra note 46, §31.
70. In fact, reference to 'developments and commonly accepted standards in the penal policy of member States of the Council of Europe' was made by the Court in Tyrer, supra note 46, §31.