issued by the Registrar of the Court

ECHR 173 (2015)

28.05.2015

Victim of alleged sexual assault should not have been exposed to offensive

questioning by alleged offender

In today’s Chamber judgment¹in the case of Y. v. Slovenia (application no. 41107/10) the European

Court of Human Rights held:

unanimously, that there had been a violation of Article 3 (prohibition of inhuman or degrading

treatment) of the European Convention on Human Rights, and

by six votes to one, that there had been a violation of Article 8 (right to respect for private and

family life).

The case concerned a young woman’s complaint about the criminal proceedings brought against a

family friend, whom she accused of repeatedly sexually assaulting her while she was a minor,

alleging that the proceedings were excessively long and traumatic for her.

The Court found that the Slovene authorities had failed to protect the alleged victim’s personal

integrity during the criminal investigation and trial. In particular, they should have prevented the

alleged assailant from using offensive and humiliating remarks while cross-examining her during the

trial.

Principal facts

The applicant, Ms Y., is a Slovenian national who was born in Ukraine in 1987. She arrived in Slovenia

in 2000 with her sister and mother, who had married a Slovenian. The case concerned the criminal

proceedings brought against a family friend whom Y. accused of repeatedly sexually assaulting her.

Y.’s mother first lodged a criminal complaint against the family friend in July 2002, accusing him of

having forced her daughter, who was 14 years old, to engage in sexual intercourse with him

between July and December 2001. The family friend, 55 years old at the time, often took care of Y.,

together with his wife, helping her to prepare for beauty contests.

In the course of the ensuing investigation and trial, the authorities questioned Y. and her alleged

assailant – who denied having had any sexual relations with Y. –, examined a number of witnesses

and appointed experts to clarify the conflicting testimonies. Thus, two gynaecological reports neither

confirmed nor disproved Y.’s allegations and two other experts came to contradictory conclusions:

the first, a psychologist, found that Y. clearly showed symptoms of sexual abuse; and the second, an

expert in orthopaedics, considered that the defendant could not have overpowered Y. and

performed the acts of which he was accused on account of a disability (his left arm had been

disabled since birth). During the gynaecological consultation, the doctor confronted Y. with the

findings, in particular, of the orthopaedics report and questioned her why she had not defended

herself more vigorously.

Y.’s request that the legal representative of the defendant should be disqualified from the

proceedings – on the grounds that, having known him previously, she and her mother had consulted

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

him concerning the sexual assaults even before the police was informed – was rejected by the trial

court, finding that there were no statutory grounds for such disqualification.

During two of the hearings in the case, the defendant personally cross-examined Y. He maintained

that he was physically incapable of assaulting her and that her accusations against him were

prompted by her mother’s wish to extort money from him; several questions were phrased in a way

to suggest a particular answer and he continuously contested the veracity of Y.’s answers, alleging

that she was able to cry on cue to make people believe her.

In September 2009, after having held 12 hearings in total, the first-instance court acquitted Y.’s

alleged assailant of all charges. The State prosecutor’s appeal against that judgment was rejected in

May 2010, as was Y.’s request for the protection of legality with the Supreme State Prosecutor a few

months later.

Complaints, procedure and composition of the Court

Y.alleged, under Article 3 (prohibition of inhuman or degrading treatment), that the investigation

into her allegation of sexual assault on her and the ensuing judicial proceedings had been

unreasonably delayed – having lasted seven years between the lodging of her complaint and the

pronouncement of the first-instance judgment – and ineffective, the authorities being biased against

her on account of her Ukrainian origin. Secondly, she complained, under Article 8 (right to respect

for private and family life), of breaches of her personal integrity during the criminal proceedings and

in particular that she had been traumatised by having been cross-examined by the defendant

himself during two of the hearings in her case.

The application was lodged with the European Court of Human Rights on 17 July 2010.

Judgment was given by a Chamber of seven judges, composed as follows:

Mark Villiger (Liechtenstein), President,

Angelika Nußberger (Germany),

Boštjan M. Zupančič (Slovenia),

Ganna Yudkivska (Ukraine),

André Potocki (France),

Helena Jäderblom (Sweden),

Aleš Pejchal (the Czech Republic),

and also Claudia Westerdiek, Section Registrar.

Decision of the Court

Article 3

The Court noted with concern that the proceedings had been marked by several longer periods of

complete inactivity. The police had submitted an incident report of Y.’s complaint to the prosecutor

only a full year after their investigation had been concluded and upon being urged by the prosecutor

to do so. Following the prosecutor’s prompt request for a judicial investigation to be initiated, the

investigating judge took 21 months to decide on that request. Once the investigation had been

concluded, the trial hearing was scheduled eight months after the indictment had been confirmed,

in breach of national procedural rules. Due to several adjournments, the first hearing was held

almost a year and a half after the defendant had been indicted.

While it was impossible to speculate whether the fact that it took more than seven years between Y.

lodging her complaint and the rendering of the first-instance judgment had prejudiced the outcome

of the proceedings, such a delay could not be reconciled with the requirements of promptness.

There had accordingly been a violation of the State’s procedural obligations under Article 3.

Article 8

Having regard to the fact that Y.’s testimony at the trial constituted the only direct evidence in the

case and the fact that the other evidence – the psychologist’s report and the orthopaedics report –

was conflicting, it was in the interest of a fair trial that the defence be provided with an opportunity

to cross-examine Y, who was moreover an adult at the time of the hearings. Nevertheless the Court

had to determine whether a fair balance had been struck between her personal integrity and the

rights of the defence.

In the Court’s opinion, the fact that Y.’s questioning had stretched over four hearings, held over

seven months, without an apparent reason for the long intervals between hearings, in itself raised

concerns.

As regards the nature of the cross-examination by the defendant himself, the Court noted that,

while the defence had to be allowed a certain leeway to challenge Y.’s credibility, cross-examination

should not be used as a means of intimidating or humiliating witnesses. Some of the defendant’s

questions and remarks, such as his allegation that Y. could cry on cue in order to manipulate people,

had aimed not only to challenge her credibility but also to degrade her character. Such offensive

insinuations exceeded the limits of what could be tolerated for the purpose of mounting an effective

defence. It would have been first and foremost the responsibility of the presiding judge to ensure

that respect for Y.’s integrity was adequately protected from those remarks, an intervention which

could have mitigated what must have been a distressing experience for her.

Concerning Y.’s assertion that the defendant’s lawyer should have been disqualified as she had

previously consulted him, it was not the Court’s task to speculate on the question to what extent she

had known the lawyer before. However, assuming that her allegation was true, the negative

psychological effect of being cross-examined by him should not have been entirely disregarded.

Moreover, the information the lawyer might have received from her should not have been used to

benefit a person with adverse interests in the proceedings. Nevertheless, her motion was rejected,

as under national law there were no statutory grounds for dismissing a legal representative in the

situation at hand. The Court therefore found that the Slovene legislation on disqualification of

counsel, or the manner in which it had been applied, did not take sufficient account of Y.’s interests.

Finally, as regards the gynaecological consultation conducted in the course of the investigation, the

Court observed that the doctor – in particular by confronting Y. with the findings of the orthopaedics

report and questioning her concerning her self-defence – had exceeded the scope of his task.

The Court acknowledged that the authorities had taken a number of measures to prevent Y. from

being traumatised further, such as excluding the public from the trial and having the defendant

removed from the courtroom when she gave her testimony. However, given the sensitivity of the

matter and her young age at the time when the alleged sexual assaults had taken place, a

particularly sensitive approach would have been required. The Court found that – taking into

account the cumulative effect of the shortcomings of the investigation and the trial – the authorities

had failed to take such an approach and to provide Y. with the necessary protection. There had

accordingly been a violation of Article 8.

Just satisfaction (Article 41)

The Court held that Slovenia was to pay Ms Y. 9,500 euros (EUR) in respect of non-pecuniary damage

and EUR 4,000 in respect of costs and expenses.

Separate opinions

Judge Yudkivska expressed a partly dissenting opinion. This opinion is annexed to the judgment.

The judgment is available only in English.

This press release is a document produced by the Registry. It does not bind the Court. Decisions,

judgments and further information about the Court can be found on www.echr.coe.int. To receive

the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter

@ECHRpress.

Press contacts

echrpress@echr.coe.int | tel.: +33 3 90 21 42 08

Nina Salomon (tel: + 33 3 90 21 49 79)

Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)

Céline Menu-Lange (tel: + 33 3 90 21 58 77)

Denis Lambert (tel: + 33 3 90 21 41 09)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.