The ECHR found a violation of the requirements of Article 8 of the Convention.

Заголовок: The ECHR found a violation of the requirements of Article 8 of the Convention. Сведения: 2024-07-09 05:24:42

The ECHR ruling of May 27, 2021 in the case "J.L. v. Italy" (complaint No. 5671/16).

In 2016, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Italy.

The case is being appealed against the "repeated victimization" of a victim of a sexual crime as a result of comments in the operative part of the court decision that contained accusing and condemning comments and sexist stereotypes. The case involved a violation of the requirements of article 8 of the Convention.




Seven men were charged with a sexual offence as part of a group against the applicant. The applicant claimed that the way the criminal case was handled, which resulted in the acquittal of the accused, led to a violation of her rights and interests guaranteed by article 8 of the Convention.




Regarding compliance with article 8 of the Convention. Italian legislation contained norms on the protection of the rights of victims of sexual violence.

With regard to the effectiveness of the investigation, taking into account the proceedings in the case as a whole, the Italian authorities were not passive and showed the required diligence and speed of action in assessing all the circumstances of the case. Indeed, the applicant appealed only against the conditions of her interrogations during the consideration of the criminal case and the arguments on which the Italian courts based their decisions in the case.

(a) The applicant's interrogations. Two conflicting versions of events were provided to the Italian judicial authorities. The direct evidence available to the authorities mainly included the applicant's testimony as a witness for the prosecution, which contained contradictory data when compared with the results of a gynecological examination and the conclusions of numerous expert opinions submitted by the investigators.

In such circumstances, the interests of a fair trial required that the defence be given the opportunity to cross-examine the applicant, given that she was not a minor and was not in a particularly vulnerable position that would require the authorities to take additional protective measures. The existence of two conflicting versions undoubtedly required a contextual assessment of the reliability of the testimony and verification of the accompanying circumstances (see the Ruling of the European Court in the case "M.C. v. Bulgaria" (M.C. v. Bulgaria) (See: The Judgment of the European Court in the case "M.C. v. Bulgaria" (M.C. v. Bulgaria) of December 4, 2003, complaint No. 39272/98.)).

However, when choosing the method of interrogation of an alleged victim of sexual violence, it was necessary to maintain a fair balance between protecting the personal integrity and dignity of the victim and the right of the accused to a defense. The applicant's cross-examination should not have been used as a way to insult or humiliate her (see the Judgment of the European Court in the case "Y. v. Slovenia" (Y. v. Slovenia) (See: Judgment of the European Court of Justice in the case "Y. v. Slovenia" (Y. v. Slovenia) dated May 28, 2015, complaint No. 41107/10 // Bulletin of the European Court of Human Rights. 2016. N 5.)).

First of all, there was no confrontation between the applicant and the alleged perpetrators at any stage of the consideration of the criminal case.

The protocols of the applicant's interrogations at the stage of the preliminary investigation did not indicate disrespectful or humiliating treatment by the investigating authorities or actions taken to encourage the applicant to abandon further consideration of the case or to conduct an investigation in another direction. The questions asked to the applicant were relevant to the case and were intended to restore the sequence of events, taking into account the arguments and opinions of the applicant, as well as to compile detailed materials of the criminal case for transfer to the court. Despite the fact that the procedure of the hearings conducted during the investigation was undoubtedly painful for the applicant, taking into account the circumstances of the case, it cannot be considered that it caused the applicant unjustified injury or would constitute unjustified interference with her intimate and private life.

As for the trial, the applicant was questioned during two court sessions. Since the applicant was not a minor and had not requested a closed court hearing, the hearings in the case were public. At the same time, the chairman of the court of first instance decided to ban journalists present in the courtroom from videotaping in order to protect the applicant's privacy. In addition, the President of the court intervened several times during the applicant's cross-examination, interrupting the defense lawyers when they asked the applicant questions that went beyond or touched on very personal issues for the applicant or when they raised issues that were not relevant to the circumstances of the case. He also adjourned the court session so that the applicant could calm down.

The criminal proceedings as a whole were undoubtedly an extremely difficult period for the applicant, especially since she had to repeat her testimony repeatedly for more than two years in order to answer questions consistently asked by investigators, prosecutors and eight defense lawyers. Moreover, when the defense lawyers tried to question the applicant's testimony, they did not hesitate to ask her personal questions, as well as about her family, sexual orientation and her sexual preferences. These questions did not relate to the circumstances of the case, which directly contradicted not only the principles of international law on the protection of the rights of victims of sexual violence, but also the norms of Italian criminal law.

However, taking into account the actions of the prosecutors and the chairman of the composition of the court of first instance, such as the measures taken by the chairman to protect the applicant's privacy in order to prevent the defense lawyers from defaming or unnecessarily upsetting the applicant during cross-examination, the domestic authorities responsible for the case cannot be considered responsible for the particularly difficult experience experienced by the applicant, and the authorities Measures have been taken to ensure that the applicant's personal integrity is adequately protected during the trial.

(b) The content of court decisions. As for the reasoning behind the judgments, the task of the European Court is not to replace the authorities of the State concerned or to decide on the guilt of the alleged perpetrators, but to determine whether the reasoning and arguments of the Italian courts led to interference with the applicant's right to respect for her private life and her personal integrity and whether there was a violation of the positive obligations provided for in article 8 of the Convention.

Several statements from the decision of the second instance court violated the applicant's rights guaranteed by article 8 of the Convention. In particular, the European Court considered that references to the red underwear "demonstrated" by the applicant during the evening were irrelevant, as were hints about her bisexuality, previous relationships and casual sexual relations prior to the events in question. He also found inappropriate arguments about the applicant's "ambivalent attitude to sex." The European Court also noted that the assessment of the applicant's decision to file a complaint against events that the court of second instance considered to be the result of a desire to "renounce" and "abandon" a "moment of fragility and weakness open to criticism" was regrettable and irrelevant, as was the reference to the applicant's "non-standard life".

The arguments and reasoning of the court of second instance were not relevant to assessing the credibility of the applicant's words, which could only be done in the light of numerous objective conclusions within the established procedure, and were not decisive for resolving the case on the merits.

The question of the credibility of the applicant's testimony was particularly important, and a reference to the applicant's previous relationship with one or another defendant or to aspects of her behavior on the evening in question could be justified. However, the applicant's marital status, her connections with third parties, her sexual orientation or choice of clothing, as well as her artistic and cultural preferences were not relevant to the assessment of the reliability of her words and to the criminal responsibility of the defendants. Thus, it cannot be considered that these attacks on the applicant's personal life and on her lifestyle were justified by the need to guarantee the defendants' rights to protection.

Positive obligations to protect alleged victims of sexual crimes also imposed a duty to protect their image, dignity and privacy, including the non-disclosure of their personal data and non-relevant information. This obligation was all the more necessary to comply with during court proceedings, and it followed both from the provisions of domestic legislation and from various international legal instruments. Consequently, the right of judges to speak freely in their decisions, which was a manifestation of the court's discretion and the principle of judicial independence, was limited by the obligation to protect the image and privacy of persons appearing in court from any unjustified interference.

In addition, the United Nations Committee on the Elimination of Discrimination against Women and the Group of Experts on Combating Violence against Women and Domestic Violence (GREVIO) noted the existence of stereotypes regarding the role of women and the resistance of Italian society regarding women's equality. Both of these structures equally noted the low level of criminal prosecution and convictions in Italy in this area, which was both a result of the lack of confidence of victims of crimes in the criminal justice system and the reason for the small number of reports of such crimes in Italy. The expressions and arguments used in the applicant's case by the court of second instance testified to the bias in Italian society regarding the role of women and probably constituted an obstacle to ensuring effective protection of their rights to victims of sexual crimes, despite the existence of an appropriate legal framework.

Criminal proceedings and punishment have played a key role in the institutional response to sexual crimes and in combating gender inequality. In this regard, it was especially important that the judiciary did not reproduce sexist stereotypes in its decisions, downplaying sexual violence and subjecting women to repeated victimization through accusing and condemning comments that could undermine victims' trust in the judicial system.

As a result, while acknowledging that in the present case the Italian authorities tried to ensure that the investigation and trial were conducted in a manner consistent with the positive obligations of the authorities under article 8 of the Convention, the applicant's rights and interests provided for in the same article of the Convention were not adequately protected, taking into account the content of the decision of the court of second instance. Consequently, the Italian authorities did not protect the applicant from repeated victimization during the trial as a whole, especially in view of the public nature of the trial.

In view of the above, the European Court rejected the objection of the Italian authorities regarding the applicant's lack of victim status.




The case involved a violation of the requirements of article 8 of the Convention (adopted by six votes in favor with one against).




In the application of article 41 of the Convention. The European Court awarded the applicant 12,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.



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