The European Court of Human Rights has found shortcomings in the investigation, accompanied by harmful gender stereotypes and victim-blaming attitudes, in the case of the gang rape of a British woman by Israeli nationals in Ayia Napa, Cyprus in July 2019, according to a Chamber decision of the Court published today.
As recalled, Applicant X, a young British national, claims that she was the victim of gang rape by Israeli nationals during her stay in Ayia Napa, Cyprus in July 2019, with the case concerning the investigation that followed by the national authorities.
It is added that after 10 days and a series of lengthy interrogations that lasted until late at night, the applicant ended up retracting her allegations and was immediately prosecuted for disturbing public order, for which she was found guilty in the first instance, however she was acquitted on appeal, with the Supreme Court of Cyprus noting various omissions in the process of investigating her rape allegation.
According to the text of the judgment, the Court observed that Cyprus has a legislative framework for the protection of the rights of victims of sexual violence. Specifically, the national law criminalizes rape by making direct reference to the absence of consent, while there is additional legislation regarding the rights, support and protection of victims.
The Court noted that the Cypriot police had begun investigating X’s allegations of rape without delay, had quickly identified the suspects, had obtained warrants, had collected DNA samples and other evidence and had not delayed questioning witnesses, so the speed of the investigation was not called into question.
It is added, however, that the case was marked by a series of shortcomings on the part of the investigating authorities, the prosecutor's office and the first-instance court. At the heart of the case was the excessively hasty termination of the investigation, caused by the retraction of X's initial statements and the immediate initiation of criminal proceedings against her, which resulted in her conviction. In subsequently overturning that conviction, the Supreme Court had identified some of the shortcomings of the investigation.
The ECtHR reiterated that the investigating authorities have an obligation to take every measure reasonably possible to secure all available evidence relating to the incident they are investigating, while it is up to the authorities to investigate all the facts and decide on the basis of all the surrounding circumstances.
It is added that, also noting certain shortcomings in the investigation, such as the failure to obtain sufficient forensic and testimonial evidence, the Court attached particular importance to the authorities’ failure to examine whether there was consent. As noted, the authorities had overlooked the fact that X had been drinking and that traces of cocaine had been found in her urine, which could have affected her ability to consent, there was no mention of her explicit disagreement with the proposal to have sex with some of the suspects or that they showed no respect for X’s desire for privacy on all three occasions when they insisted on entering the room despite being explicitly asked to leave. It appears that no attempt had been made to check whether steps had been taken to ensure that X consented to sex on July 17, 2019, but there was testimony that some of the suspects hoped and expected that she would have sex with her, simply assuming that they could do so, it added.
Furthermore, it appeared that the authorities' reluctance to pursue the investigation further or to initiate criminal proceedings was based on X's sexual freedom and behavior. As reported, her credibility appears to have been assessed on the basis of gender stereotypes and victim-blaming behaviors, as due to X's alleged participation in group sexual activities in the past, it seemed to be taken for granted that she would not refuse to do the same on the day of the alleged rape.
The Court also observed that while the decision of the chief investigator to discontinue the investigation and the decision of the Attorney General not to reopen it were largely based on alleged contradictions in X’s statements, they had not taken into account the circumstances in which those statements had been made and the psychological impact that the alleged rape might have had on her at the time, or whether she might still have been under the influence of alcohol, drugs or tranquillisers given to her by her friend to calm her down. Furthermore, it was not clear whether she had been given time to sleep or rest between the alleged rape and her first and second statements.
The Court observed that X, an 18-year-old foreign national who was alone in Cyprus, was only referred to a psychologist on 19 July 2019, two days after the alleged gang rape. Furthermore, although she had spoken to a female police officer in her initial statements, this had been done without the presence of a lawyer, psychologist or social welfare services. After six hours of questioning throughout the afternoon of 27 July 2019, X had ended up withdrawing her complaint after XNUMXam, claiming that the long and repeated interviews had led her to this decision.
In the Court’s view, the numerous times X had to repeat to the authorities what had happened and their failure to adopt a more victim-sensitive approach constituted evidence of re-victimisation. The Court observed that the case revealed certain prejudices regarding women in Cyprus which prevented the effective protection of X’s rights as a potential victim of gender-based violence.
In light of the numerous shortcomings identified, the Court concluded, without expressing an opinion as to the guilt of the suspects, that the response of the investigating and prosecuting authorities to X’s allegations of rape had not met the State’s duty (“positive obligation”) to apply the relevant criminal provisions in practice through effective investigation and prosecution. There had therefore been a violation of Articles 3 and 8 of the Convention.
The Court ruled that the Republic of Cyprus must pay the applicant 20.000 euros for non-pecuniary damage and 5.000 euros for legal costs and expenses.
Finally, it is noted that since this is a decision of the Chamber of the Court, both sides have a 3-month period within which they can request the referral of the case to the Grand Chamber of the Court for a final decision.
Source: KYPE
