The ECHR ruling of February 09, 2021 in the case "N.C. (N.C.) v. Turkey" (aplication No. 40591/11).
In 2011, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Turkey.
In the case, an aplication was successfully considered about the lack of protection of the applicant's personal integrity during the criminal investigation of the case on the complaint of sexual violence to which she was subjected, and the insufficient effectiveness of the investigation itself. The case involved a violation of the requirements of articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant was forced into prostitution by two women when she was only 12 years old. During the following year, the applicant filed a complaint against these persons, as well as against the man with whom she had sexual relations.
The applicant appealed, first of all, the lack of protection of her personal integrity during the criminal investigation of the case of a complaint of sexual violence to which she was subjected, and, secondly, the insufficient effectiveness of the investigation itself.
LEGAL ISSUES
Regarding compliance with articles 3 and 8 of the Convention. In the applicant's case, her treatment reached the minimum level of cruelty required for the application of article 3 of the Convention. Given the applicant's young age at the time of the events complained of, she was in a vulnerable position. In this context, the sexual violence suffered by the applicant and the complaints of secondary victimization, that is, the shortcomings of the criminal proceedings in the field of ensuring the protection of the applicant, were sufficiently significant to fall within the scope of article 3 of the Convention. In addition, in view of the impact of both aspects of the applicant's complaints on her physical and psychological integrity, the events complained by the applicant also fell within the scope of article 8 of the Convention.
(a) Protection of the applicant during the criminal proceedings. The criminal case was initiated immediately after the applicant's complaint, and most of the defendants were sentenced to terms of imprisonment. Nevertheless, in such a serious case concerning the sexual exploitation of a girl under the age of 15, the European Court could not limit itself to general conclusions when assessing whether the Turkish authorities had fulfilled their obligations under articles 3 and 8 of the Convention.
(b) The failure of the authorities to provide the applicant with protection during the consideration of the case. Several international instruments for the protection of victims of physical or psychological violence and for protection from secondary victimization provided guidance on the assistance that should have been provided to children affected by sexual violence and exploitation. In this case, for 18 months after the complaint was filed, the applicant was never assisted by a social security officer, a psychologist, or any expert, either during the consideration of the case by the police and the prosecutor's office, or during the trial by jury. This fact was sufficient to conclude that the applicant had not been properly taken care of during the consideration of the present case.
(c) Failure to protect the applicant from the defendants. The applicant's situation worsened during the trial of her case by a jury, since no measures were taken to isolate the applicant from the defendants. During several court sessions, the applicant sat opposite the defendants and was forced to describe in detail the attacks, threats, violent sexual acts to which she was subjected, which, undoubtedly, was an extremely humiliating situation for the applicant. However, there is no indication in the case file that the applicant would have requested such confrontations, or even that these actions were necessary for the proper and effective exercise of the rights of the defense, so the European Court could not conclude that an appropriate balance of interests was achieved in the case. Thus, the applicant was not protected from the defendants in such a serious case as the accusation of forced prostitution and sexual violence against a child under the age of 15.
(d) Senseless reconstruction of sexual violence against the applicant. The applicant was required to reproduce - in front of all the defendants and their representatives - the positions in which sexual acts took place. The jury did not take any action to mitigate the humiliation that the applicant legitimately believed had been inflicted on her in this regard. Moreover, there was also nothing in the case file to explain why such a reconstruction was necessary to establish the actual circumstances of the case or their legal qualification. For the applicant, these court sessions were undoubtedly extremely traumatic, and the decision to hold meetings in private alone was not in itself sufficient to prevent damage to the applicant's dignity and prevent interference with her private life. These court sessions had a negative impact on the applicant's personal integrity and significantly exceeded the level of discomfort that a victim of alleged sexual abuse and exploitation could expect to testify in court. Consequently, these court sessions cannot in any way be justified by the requirement of ensuring a fair trial for the defendants.
(e) Repeated medical examinations. At the request of the judicial authorities, the applicant was examined ten times to establish her exact age or the consequences of sexual violence. This excessive and inexplicable number of medical examinations, many of which involved extremely invasive manipulations, thus represented an unacceptable interference with the applicant's physical and psychological integrity.
(f) Lack of security measures. At the end of the court sessions, the applicant was also forced to face such an aggressive attitude of the defendants' relatives that on one occasion police officers were required to accompany the applicant so that she could leave the city. Apparently, the Turkish authorities have not taken any preventive measures in this regard. There were no justifications for the jury's refusal to move the case to another city, which was, nevertheless, a common practice in criminal cases involving sensitive issues, and which could ensure the proper conduct of court sessions and the applicant's safety.
(g) Assessment of the victim's consent. With regard to the fact that the applicant challenged the validity of her consent, referring to her young age at the time in question, the task of the European Court was to consider whether the Turkish legislation under appeal and its application in the present case, together with the alleged errors of the investigation, had such significant shortcomings that they were considered a violation by the Turkish authorities of their positive obligations under Articles 3 and 8 of the Convention. Issues related to human dignity and psychological integrity required special care when considering the victim of a case of sexual violence against a child, and the duties of the State implied the effective exercise of the rights of the child. Thus, the best interests of the child were in the first place, and the Turkish authorities had to respond appropriately to issues related to the child's special vulnerable status. The failure of the Turkish authorities to make substantial efforts to establish all the circumstances of the case and their inability to assess the victim's consent based on the context could have caused problems with the provisions of the Convention under consideration.
However, giving equal importance to the consent of a child under the age of 15 and the consent of an adult could not under any circumstances be considered permissible in the context of a case of sexual exploitation of a child and sexual violence against a child. The investigation and its conclusions should have focused primarily on the lack of consent. Consequently, the Constitutional Court noted with interest that the text of article 414 of the Turkish Criminal Code, which refers to "rape", did not mention such terms as "consent" or "willingness" or their synonyms; Also, the mentioned terms are not specified in article 416 of the Turkish Criminal Code, which provides for punishment even for voluntary sexual relations on both sides with a child under the age of 15, which gave even more importance to the fact that there was no need to take into account consent if it was a child under the age of 15.
Nevertheless, the Turkish courts attached decisive importance to the applicant's "consent" when they concluded that the first part of article 414 of the Turkish Criminal Code was applicable; The Turkish courts interpreted this provision as criminalizing any sexual relationship, even consensual, with a person under the age of 15, without specifying, however, why in the applicant's case neither the alleged threats and violence nor the payments made were considered criteria meeting the provisions of part two of article 414 of the Turkish Criminal Code, which were interpreted by the Turkish authorities as situations meaning "insufficient consent" on the part of the victim. These norms provided for longer terms of imprisonment, referring to "the use of force, violence or threats" or to "deception that deprives the victim of the opportunity to defend himself"; the latter criterion did not limit in any way the physical, psychological or material nature of the methods of deception in question.
The contradictory interpretation of the Turkish courts was even excessive in relation to one of the defendants, who threatened the applicant to inform her family about her activities in order to obtain sexual contact from her several times. Referring to the decision of the Turkish Court of Cassation that the corpus delicti in the form of a threat cannot be established if the threat comes from the actions of the person concerned, the jury decided that the actions of the defendant in question in the applicant's case could not be considered a threat, thus excluding the application of part two of article 414 of the Turkish Criminal Code to the case. In the opinion of the European Court, in the relevant context, such an interpretation could be considered logical, for example, if the offender was threatened with disclosure of his actions, and the threatened person counted on financial gain. However, it was absolutely unacceptable to draw an analogy in this regard with threats against the victim in the context of sexual exploitation and sexual violence against a child.
The Turkish courts made considerable efforts to exclude the application of the second part of article 414 of the Turkish Criminal Code, which provided for long terms of imprisonment, and at none of the stages of the case did they show any attention to the vulnerable situation of the applicant, who at the time under consideration had not yet reached the age of 15. This restrictive interpretation, which did not take into account the applicant's age, absolutely did not correspond to an objective assessment of the special circumstances of the case and the protection of the interests of the child, the victim of a crime of sexual exploitation and sexual violence.
(h) The effectiveness of the investigation. The criminal proceedings lasted 11 years, and were reviewed four times by the courts of two instances. Although the case was complicated due to both the difficulties in establishing the facts and the number of defendants, it seems that such a long period of consideration of the case cannot be blamed on the applicant or her representatives. Numerous unexplained medical examinations significantly delayed the proceedings in the case. There was an unexplained period of inactivity that lasted almost five years. Two periods, one year each, when the case was pending before the Turkish Court of Cassation, also had no explanation. In addition, the statute of limitations for criminal prosecution has expired with regard to the charges of deprivation of liberty and coercion to engage in prostitution. Thus, the actions of the Turkish judicial authorities absolutely did not meet the requirements of urgency and speed required in this case, in respect of which special attention and priority treatment should have been shown in order to protect the interests of the child.
(i) Conclusion. The lack of assistance to the applicant, the inability to provide vis-a-vis protection to the defendants, baseless reconstructions of scenes of sexual violence, repeated medical examinations, the inability to provide a calm and safe environment at the hearing, the assessment of the victim's consent, the excessive duration of the proceedings and, finally, the cancellation of charges on two counts due to the expiration of the statutory statute of limitations of criminal prosecution - all this was a serious case of secondary victimization of the applicant.
The actions of the Turkish authorities did not comply with the obligation to protect a child who was a victim of sexual exploitation and violence. The first and foremost duty of the jury judges was to ensure that the applicant's right to personal integrity would be adequately protected during the trial. The intimate nature of the essence of the case, as well as the applicant's age, were particularly sensitive issues that inevitably required a correspondingly cautious approach on the part of the Turkish authorities when conducting criminal proceedings in the case.
As for the improvements made in the Turkish judicial system after 2005, with the exception of the assistance of a psychologist, when the applicant was taken to testify at the commission, these changes were not applied in the applicant's case.
In the light of the above, the applicant's proceedings failed to ensure the effective application of criminal law to the violation of the values protected by articles 3 and 8 of the Convention.
RESOLUTION
The requirements of articles 3 and 8 of the Convention were violated in the case (adopted unanimously).
COMPENSATION
In accordance with the application of Article 41 of the Convention, the European Court awarded the applicant 25,000 euros in compensation for moral damage, the claim for compensation for material damage was rejected.