CASE OF PAUL AND AUDREY EDWARDS v. THE UNITED KINGDOM

Violation of Art. 2 as regards circumstances of the applicant's son's death;Violation of Art. 2 as regards the failure to provide an effective investigation;No separate issue under Art. 6 or 8;Violation of Art. 13;Non-pecuniary damage - financial award

The facts of this case were subject to investigation before a private, non-statutory inquiry, which issued a report on 15 June 1998, setting out extensive findings of fact. As these were not contested by the parties, the Court has relied on the report in its own assessment of the facts below.

Prior to his death, Christopher Edwards had shown signs of developing a serious mental illness. In 1991 a psychiatric assessment expressed the tentative diagnosis of schizophrenia. In July 1994 he stopped living at home with the applicants, his parents. At this time he stopped taking his medication.

On 27 November 1994 Christopher Edwards, then 30 years old, was arrested in Colchester by the police and taken to Colchester police station. He had been approaching young women in the street and making inappropriate suggestions. His behaviour before arrest, and at the police station where he attempted to assault a policewoman, led police officers to suspect that he might be mentally ill. He was assessed at the police station by an approved social worker, who discussed the matter on the telephone with a consultant psychiatrist. They agreed that, while there was some evidence of possible developing schizophrenia, he did not need urgent medical attention and that he was fit to be detained at the police station. Any psychiatric assessment could take place as part of a pre-sentencing exercise. Christopher Edwards was held in a cell on his own. The police officer responsible did not fill in a CID2 form identifying Christopher Edwards as an exceptional risk on ground of mental illness due to the opinion expressed by the social worker. The police officer did, however, note in the confidential information form (MG6A) her belief that if Christopher Edwards was not treated or seen by the mental health team he might seriously harm a female. She was not aware that her own suspicion of his mental state was sufficient to warrant categorising Christopher Edwards as an exceptional risk.

On 28 November 1994 Christopher Edwards was brought to Colchester Magistrates' Court. Immediately his handcuffs were removed, he pushed through the other prisoners and confronted a female prison officer. He was restrained, but struggled and tried to approach her again. He was placed in a cell on his own. During the morning, he continually banged on the cell door and shouted: “I want a woman.” He shouted obscenities about women. The applicants met the duty solicitor at about 9.45 a.m. and explained that their son was mentally unwell and that they wanted him to receive medical care and not to be remanded in custody. When the duty solicitor attempted to talk to Christopher Edwards in his cell, he received no assistance from his client who continued to make obscene suggestions about women. The duty solicitor discussed the problem with the Clerk to the Justices.

On his way to court and in the courtroom, Christopher Edwards repeated his earlier comments about women. The prosecutor had in her possession the MG6A form and had been requested by the police to obtain his remand in custody as there was a risk that he would reoffend and there was a real question mark about his mental state. The prosecutor informed the court that he was perceived as a risk to women, although it is unclear how much detail was given. She relied on the fact that an assessment by a psychiatrist had not yet been carried out in support of her application. Consideration was given by the Bench, together with the prosecutor, duty solicitor and Justice's Clerk as to whether he could be remanded to hospital. It was concluded that there was no power to do so under section 30 of the Magistrates' Courts Act 1980. No consideration was given, inter alia, to the application of civil provisions (sections 2, 3 or 4 of the Mental Health Act 1983) or to section 35 of the 1983 Act, which provided for remand to a hospital for assessment.

The magistrates decided to remand Christopher Edwards in custody for three days, which was a shorter period than usual, bringing forward the date to 1 December so that instructions could be taken and legal aid forms completed. Further consideration would then be given, inter alia, to the obtaining of a psychiatric report. After the hearing, the first applicant telephoned the probation service in Colchester and expressed concern about his son's mental health. He was advised to contact Chelmsford Prison. He rang the probation officer at the prison and informed her of his son's medical history. Her telephone note indicated that she had been told that he had been prescribed stelazine, though he had been refusing to take it or accept that he was mentally ill. The probation officer visited the health care centre and spoke to the senior medical officer, Dr F. Although there was later dispute as to how much detail she passed on to the doctor, he recalled being informed that Christopher Edwards was considered to be a risk to women. However, having regard to the psychiatric social worker's comments that Christopher Edwards was fit for detention in a police station and the fact that the court had not ordered any psychiatric reports, he stated that he would not interfere with the usual admissions procedure which meant that Christopher Edwards would be screened on arrival in the usual way and his location in the prison would depend on the result of that process. Neither he nor the probation officer passed on any of this information to the reception staff.

A prison officer returning to Chelmsford Prison from the Magistrates' Court informed the officer in charge of reception staff that a female prison officer had been assaulted by a prisoner who was due to arrive later that day. The police officers at the Magistrates' Court custody area suspected from his behaviour that Christopher Edwards was mentally abnormal and might be a threat to women and decided to warn the prison staff. A police officer rang and spoke to the senior officer at the prison reception and told him, inter alia, that the magistrates had wanted to remand Christopher Edwards to a mental hospital and that he had assaulted a female prison officer. The senior officer was concerned at this information and contacted the Magistrates' Court to verify whether he was being remanded under a normal warrant. He also spoke to the duty governor about the allocation of Christopher Edwards and it was decided, subject to the health care screening, that he should be located on wing D-1 where no female officers worked.

In the late afternoon, Christopher Edwards was taken to Chelmsford Prison. The reception staff were aware of the information passed on from the police at the Magistrates' Court and that he was a potential danger to women. He was placed in a holding area while the other prison arrivals were processed. His behaviour was noted as “strange” and “odd” and when being placed in the holding cell he was aggressive and tried to punch a prison officer. After two hours he was screened by Mr N., a member of the prison health care staff, who saw no reason to admit him to the health care centre. Mr N. knew nothing about previous discussions in the court or the concerns passed on to the prison about Christopher Edwards's mental health. He was only aware that Christopher Edwards was alleged to have assaulted a female police constable. Mr N. followed the standard questionnaire. To question 5 (Have you ever been seen by a psychiatrist?), the answer was “three years ago”. Christopher Edwards did not disclose that he had been taking stelazine. There was no evidence of active mental disturbance or bizarre behaviour during the interview, which was unlikely to have lasted more than ten minutes. No medical officer was on duty at the centre at this time, or was present in the prison. Christopher Edwards was admitted to the main prison and placed in cell D1-6.

He was detained in a cell on his own during this period.

Meanwhile, Richard Linford was arrested in Maldon on 26 November 1994 for assaulting his friend and her neighbour. At Maldon police station, he was seen by a police surgeon as it was suspected that he was mentally ill. The police surgeon certified that Richard Linford was not fit to be detained. Richard Linford was assessed by a psychiatric registrar who consulted on the telephone with a consultant psychiatrist, who decided that he did not need to be admitted to hospital and that he was fit to be detained. Richard Linford was transferred to Chelmsford police station, where the police surgeon also found him fit to be detained. While his conduct before and after arrest was bizarre, it was attributed by the doctors to the effects of alcohol abuse, amphetamine withdrawal and to a deliberate attempt to manipulate the criminal justice system. The registrar, who had previously treated Richard Linford, knew that he had been diagnosed at various times as suffering from schizophrenia or as having a personality disorder, but also knew him as someone who became ill when abusing alcohol and drugs. Over the weekend, Richard Linford showed further bizarre behaviour and was violent towards police officers. He was not reassessed by a doctor. No CID2 form was filled in, although police officers remained of the opinion that he was mentally ill. On 28 November 1994 Richard Linford was remanded in custody by Chelmsford Magistrates' Court. The magistrates were presented with a “sane but dangerous” description of him. Richard Linford arrived at Chelmsford Prison shortly after Christopher Edwards, where he was screened by the same member of the prison health care service who had seen Christopher Edwards and who saw no reason to admit him to the health care centre. Richard Linford did not behave in a bizarre fashion during the screening. Mr N. did not have knowledge of Richard Linford's previous convictions, which would have alerted him to his admittance to hospital in 1988.

Initially, Richard Linford was placed in cell D1-11 on his own. He was then moved into cell D1-6 with Christopher Edwards. This was due to shortage of space, as all the other cells on the landing were doubly occupied.

Each cell had a green emergency light situated on the wall outside the cell next to the door which came on when the call button was depressed inside the cell. Additionally, once the button was pressed, a buzzer sounded on the landing and a red light lit up on a control panel in the office on the landing concerned, indicating the cell. The red light remained on and the buzzer continued to sound even if the prisoner ceased to press the button. At 9 p.m., either Christopher Edwards or Richard Linford pressed the call button. A prison officer saw the green light outside the cell and was told that they wished one of the cell lights, operated from the exterior, to be switched off. He agreed to do so. He saw that the two men appeared to be “getting on all right”. He noticed that while the green light had gone on the buzzer which should have been sounding continuously had not done so. He did not report the apparent defect.

Shortly before 1 a.m. on 29 November 1994, a prison officer heard a buzzer sound. He saw no red light on the D-landing control panel and saw a prison officer go to check the other landings. Some time later, he heard continuous banging on a cell door on his landing. On going to investigate he saw the green light on outside cell D1-6. Looking through the spy hole, he saw Richard Linford holding a bloodstained plastic fork and noticed blood on the floor and on Linford's feet. There was a delay of five minutes while officers donned protective clothing. They entered the cell to find that Christopher Edwards had been stamped and kicked to death. Richard Linford was making continual reference to being possessed by evil spirits and devils. D-landing had previously been patrolled at 12.43 a.m., which indicated that up to seventeen minutes could have elapsed since the pressing of the cell's call button.

At the time of the attack, Richard Linford was acutely mentally ill. He was transferred later on 29 November 1994 to Rampton Special Hospital.

On 21 April 1995 Richard Linford pleaded guilty at Chelmsford Crown Court to the manslaughter of Christopher Edwards by reason of diminished responsibility. The trial was therefore brief. The judge imposed a hospital order under section 37 of the Mental Health Act 1983 (“the 1983 Act”), together with a restriction order under section 41. Richard Linford is currently still at Rampton Special Hospital, diagnosed as suffering from paranoid schizophrenia.

A coroner's inquest had been opened but adjourned pending the criminal proceedings against Richard Linford. After Richard Linford's conviction, the coroner closed the inquest, as there was no obligation to continue in those circumstances.

On 16 October 1995 the applicants were advised by the Assistant Chief Constable that it was considered that there was insufficient evidence to establish the offence of manslaughter by gross negligence on the part of anyone involved in the case but that the matter would be probably reviewed at the conclusion of the inquiry which had been commenced by the statutory agencies concerned in the case.

In July 1995 a private, non-statutory inquiry was commissioned by three State agencies with statutory responsibilities towards Christopher Edwards – the Prison Service, Essex County Council and North Essex Health Authority. Its terms of reference were:

“To investigate the death of Mr Edwards in Chelmsford Prison, including factors in his and Mr Linford's detention which are relevant to that, and in particular: the extent to which their reception, detention, management and care corresponded to statutory obligations, Prison Service Standing Orders and Health Care Standards and local operational policies.

To examine the adequacy, both in fact and of relevant procedures, of collaboration and communication between the agencies (HM Prison Service, the Essex Police, the courts, MidEssex Community and Mental Health NHS Trust and its predecessor, and Essex County Council Social Services Department) involved in the care, custody and control of Mr Edwards and Mr Linford, or in the provision of services to them.

To examine the circumstances surrounding the arrest, detention and custody of Mr Linford and Mr Edwards by Essex Police, including whether all relevant information was effectively and efficiently passed between Essex Police, the prison service, the courts, and any other relevant agencies ...;

To examine all the relevant circumstances surrounding the treatment and care of Mr Edwards and Mr Linford, by the health service and social services, and in particular: the extent to which Mr Edwards and Mr Linford's care corresponded to relevant statutory obligations, relevant guidance from the Department of Health ... and local operational policies.

To prepare a report and make recommendations to North Essex Health Authority, Essex County Council Social Services Department and HM Prison Service, and other such agencies as are identified as appropriate ...”

In February 1996 the applicants were advised by their solicitors that they had a claim for funeral costs and a potential claim for compensation and any pain and suffering between Christopher Edwards's injury and death, but that taking into account legal costs it would not be economic to bring such a claim.

In April 1996, the Criminal Injuries Compensation Board awarded the applicants 4,550 pounds sterling (GBP) for funeral expenses but decided that there should be no dependency or bereavement award.

The inquiry opened in May 1996. It was chaired by Mr Kieran Coonan QC, Recorder of the Crown Court, the other members of the panel consisting of Professor Bluglass (Emeritus Professor of Forensic Psychiatry at the University of Birmingham), Mr Gordon Halliday (former Director of Social Services, Devon County Council and member of the Mental Health Commission), Mr Michael Jenkins (former Governor of Oxford Prison and Long Lartin Prison and HM Deputy Chief Inspector of Prisons 1987-92) and Mr Owen Kelly (Commissioner of the City of London Police 1985-93). They were assisted by a firm of solicitors appointed by the commissioning agencies to provide secretarial and administrative support and to arrange for the attendance of witnesses. Two solicitors from this firm were appointed as advocates to the inquiry.

The inquiry received evidence on fifty-six days over a period of ten months. It sat in private. It had no powers of compulsion of witnesses or production of documents. Two prison officers refused to give evidence. The inquiry report later noted that one of these had potentially significant evidence and his refusal was said to be “all the more regrettable since he had passed by Christopher Edwards's cell shortly before he met his death”. The inquiry panel conducted visits to the police stations, Magistrates' Court building and prison concerned. Professor Bluglass, a member of the panel, interviewed Richard Linford in hospital. About 150 witnesses attended the inquiry to give evidence, while a considerable number of others submitted written evidence.

In November 1997 the applicants issued a summons in the County Court for negligence against the Chief Constable of Essex and Essex County Council. They did not, however, serve it due to legal advice from their solicitors.

Draft extracts of the inquiry's preliminary findings were circulated to those subjected to criticism to allow them the opportunity to comment. A number of witnesses were recalled to give evidence on 27 April 1998.

The inquiry report was published on 15 June 1998. It concluded that ideally Christopher Edwards and Richard Linford should not have been in prison and in practice they should not have been sharing the same cell. It found “a systemic collapse of the protective mechanisms that ought to have operated to protect this vulnerable prisoner”. It identified a series of shortcomings, including poor record-keeping, inadequate communication and limited inter-agency cooperation, and a number of missed opportunities to prevent the death of Christopher Edwards.

The findings included the following:

(a) Ideally, if suitable beds had been available, Christopher Edwards should have been admitted to hospital for assessment under section 2 of the Mental Health Act 1983.

(b) It was a serious omission, and breach of Code C of the Code of Practice under the Police and Criminal Evidence Act 1984 (“PACE”), that no doctor had been asked by the custody officer to see Christopher Edwards.

(c) It was a serious failure by Essex Police that a CID2 form was not completed describing Christopher Edwards as a prisoner reasonably suspected of being an exceptional risk on the grounds of mental disturbance, though it was noted that even if he had been so described by the police this would not have been enough, by itself, to ensure that he was admitted to the health care centre at Chelmsford Prison.

(d) At the Magistrates' Court hearing on 28 November 1994 no consideration was given to section 35 of the 1983 Act which provided for a remand to hospital for assessment.

(e) No attempt was made by the court to notify the prison authorities, in particular the senior medical officer, that Christopher Edwards was suspected of suffering from a mental illness.

(f) Information provided to the prison by the applicants about Christopher Edwards's psychiatric background was not recorded or passed on to the person carrying out the screening.

(g) When Christopher Edwards arrived at Chelmsford Prison there was no medical officer on duty, in breach of the Prison Service Health Care Standards.

(h) The prison health care worker, Mr N., who assessed Christopher Edwards was inadequately trained in the recognition of mental disorder and had been given insufficient guidance. The screening was rushed and superficial and did not take place in adequate conditions of privacy.

(i) Mr N. had not been provided with any information about the concerns as to Christopher Edwards's mental condition by the police or the court. If he had received a CID2 form identifying mental disturbance or the court had expressed some concern, this might have prompted sufficient residual doubts to cause him to err on the side of caution and have him admitted to the health centre for the first night.

(j) The cell's call system was defective; it had been pressed up to seventeen minutes before the alarm was raised by Richard Linford banging on the door and the warning buzzer had not sounded, or if it did it only sounded briefly. If it had functioned, a prompt response might have saved Christopher Edwards's life. The system could be disabled simply by wedging a matchstick behind the re-set button on the control panel and it could not be ruled out that it might have been tampered with by a prison officer or prisoner who wanted a “quiet night”. The fact that it could so easily be disabled rendered the system inadequate and unsafe. It was also noted that according to good practice, where the cell's call system was defective, either the occupants should be moved to another cell or effective visual monitoring should be provided, as a cell could not be certified fit for occupation without a method of communication in working condition.

(k) Richard Linford had a history of violent outbursts and assaults, including a previous assault on a cell-mate in prison. He had been admitted to mental hospital in 1988, and subsequently had been diagnosed as suffering from schizophrenia. Despite psychotic episodes and further assessments, he was not admitted to hospital after September 1994, as he was not considered to be suffering from acute mental illness. A case conference was held on 24 October 1994, where one of Richard Linford's general practitioners and a police officer expressed the view that he was capable of serious violence or murder. However, no formal risk assessment was carried out. The consultant psychiatrist did not accept that the risk to public safety was serious and it was decided to make one last attempt to induce Richard Linford to take depot medication before detaining him under section 3 of the 1983 Act. On 7 November 1994, it was reported to the consultant that Richard Linford was refusing depot medication.

(l) After Richard Linford's arrest on 26 November, no attempt was made to locate his medical notes before being assessed. The psychiatric registrar was unaware of the case conference or the outline plan to detain him.

(m) No CID2 form was filled in by the police for Richard Linford despite his attacks on two officers, as the officer concerned did not know that such a form existed.

(n) The police, prosecution and magistrates were aware that Richard Linford was described as dangerous but no formal warning was given to the prison authorities.

(o) At Chelmsford Prison, Richard Linford was screened by Mr N., who knew nothing about him except that he had been “difficult” in the police station; although the provision of a CID2 form would not have been conclusive, information about his previous convictions (and admittance to hospital) might have prompted a closer appraisal and he might have had sufficient doubts to have him admitted to the health care centre despite the absence of really bizarre symptoms.

Following the publication of the report, the applicants sought advice as to whether there were any civil remedies available to them in the light of the findings of the inquiry. At a conference on 2 October 1998, they were advised by counsel that there were still no available civil remedies. The inquiry had made no relevant findings in relation to whether any time elapsed between their son being injured and his death, which would have determined whether they had any action in respect of pain and suffering experienced by their son before he died.

By letter of 25 November 1998, the Crown Prosecution Service maintained their previous decision that there was insufficient evidence to proceed with criminal charges. The applicants' counsel advised on 10 December 1998 that, notwithstanding the numerous shortcomings, there was insufficient material to found a criminal charge of gross negligence against any individual or agency.

By letter dated 15 December 2000, the Police Complaints Authority (PCA) provided the applicants with a report on their complaints about police conduct in dealing with Christopher Edwards and on the subsequent investigation into his death. The report upheld fifteen of the complaints and made a number of recommendations to Essex Police in relation to practice and procedure. It found, inter alia, a breach of the Code of Practice under PACE in that the police failed to summon a doctor to the police station when Christopher Edwards's behaviour led them to believe that he might be suffering from a mental illness and that, as regarded the failure of the officers to fill in a CID2 form identifying Christopher Edwards and Richard Linford as exceptional risks on grounds of mental disturbance, the officers concerned had been insufficiently informed as to the existence and purposes of the form. It also upheld complaints about the police investigation after the death, including a failure by the police investigators to test the cell buzzer properly to establish its effectiveness, the loss of the list of prisoners held on the relevant landing on the night of the incident and a failure to interview relevant persons in the prison, for example, Mr N., the health care worker, the prison doctor and the prison probation officer concerning the allegation of criminal negligence raised by the applicants.

Under the common law, no one can recover damages in tort for the death of another.

The Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(1) provides:

“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

However, the statutory right of action is reserved to the deceased's dependants (section 1(2) which allows the recovery of their pecuniary loss). If there are no dependants, there is no pecuniary loss to recover as damages. Bereavement damages (fixed at GBP 7,500) are only available to the parents of a child under the age of 18 (section 1A(2)). Funeral expenses are recoverable (section 3(5)).

The Law Reform (Miscellaneous) Provisions Act 1934 provides for the survival of causes of action for the benefit of the deceased's personal estate. The relevant part of section 1(1) provides:

“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”

This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died, including any non-pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act and the only recoverable amount would be funeral expenses.

Two cases have arisen since the entry into force on 2 October 2000 of the Human Rights Act 1998 concerning deaths in custody in which the domestic courts have examined the requirements of Articles 2 and 3 of the Convention.

In R. on the application of Wright v. the Secretary of State for the Home Department ([2001] High Court, Administrative Court (England and Wales) 520, 20 June 2001), proceedings were brought by the mother and aunt of a man who died in custody as a result of a severe asthma attack in which it was alleged that his treatment prior to his death did not comply with Articles 2 or 3 of the Convention and that there had been a failure to provide a proper investigation into his death. The High Court found that it was arguable that the Prison Service had breached Articles 2 and 3 in its treatment of this prisoner and that, as the inquest and civil proceedings did not constitute an effective official investigation for the purpose of the procedural obligations under these provisions, the claimants were entitled to an order that the Secretary of State set up an independent investigation into the circumstances of the death. Although the death had occurred prior to 2 October 2000, the court held that there was a continuing obligation after that date to provide an effective investigation in the special circumstances of that case where the death was still the subject of active debate and controversy.

In R. on the application of Amin v. the Secretary of State for the Home Department ([2001] High Court, Administrative Court (England and Wales) 719, 5 October 2001), where 19-year-old Zahid Mubarek was bludgeoned to death by a violent and racist prisoner, there was a claim that the Secretary of State had failed to hold an open and public investigation into the circumstances of the death. The High Court found that internal inquiry by the Prison Service and the criminal trial of the assailant did not constitute an effective investigation for the purposes of the procedural obligation under Article 2, principally as it did not establish why on that night Zahid Mubarek was sharing a cell with his assailant. The claimants were accordingly entitled to a declaration that an independent public investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses, must be held to satisfy the obligations imposed by Article 2 of the Convention.


The applicant, Mr Jerzy Skotniczny, is an Austrian national who lives in Crakow. He is represented before the Court by Mr A. Buczkowski, a lawyer practising in Crakow.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 29 February 1994 the applicant brought an action before the Cracow-Śródmieście District Court (Sąd Rejonowy) claiming that joint ownership of a property located in Cracow at Grodzka Street, co-owned by him and two other persons, be dissolved.

The proceedings were terminated by the decision of the Supreme Court of 10 July 2002. On 17 March 1999, the date on which the application was lodged with the Court, they were pending before the Cracow-Śródmieście District Court.

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

Section 2 of the 2004 Act reads, in so far as relevant:

Section 5 reads, in so far as relevant:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1. The court shall dismiss a complaint which is unjustified.

If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


Violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) (Article 6 - Right to a fair trial;Article 6-3-a - Prompt information);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) (Article 6-3-b - Adequate time;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos

The applicant was born in 1953 and lives in Bad Brückenau, Germany.

The Budapest Public Prosecutor's Office indicted the applicant for preparation to counterfeit money (section 304 of the Criminal Code).

On 30 November 2006 the Budapest Regional Court found the applicant guilty as charged and sentenced him to a fine.

On appeal, the Budapest Court of Appeal held a public session and completed the findings of fact as established by the Regional Court. It observed that the defendant's act could be re-characterised as attempted aggravated fraud (section 318 of the Criminal Code) and enquired as to whether he wished to have an adjournment on that account. The applicant replied in the negative.

On 10 October 2007 the Budapest Court of Appeal reversed the first-instance judgment and re-characterised the applicant's offence as forgery of public documents (section 274 of the Criminal Code). The applicant submitted that there had been no taking of evidence in this regard before the Court of Appeal. His sentence remained unchanged; nevertheless, he filed a petition for review.

On 30 April 2009 the Supreme Court held a public session and upheld the applicant's conviction without taking evidence. In the reasoning of that decision, it was observed that the judgment of the Court of Appeal amounted to a violation of the substantive provisions of the Criminal Code in that although the applicant, a national of Germany, had committed the crime in question abroad, the lower courts had not explored whether his act was punishable under German law or obtained the Attorney General's requisite endorsement of the indictment. However, the Supreme Court held that the applicant's deed in fact constituted the offences of complicity in attempted aggravated fraud (section 318 of the Criminal Code) and in forgery of private documents (section 276 of the Criminal Code). It did not change the sanction imposed on the applicant. This decision was served on 18 June 2009.

Section 274(1) of the Criminal Code provides that a person who prepares a forged official document or falsifies the contents of an official document, uses a fake or forged official document or an official document issued under the name of another person, or co-operates in the inclusion of untrue data, facts or declarations in an official document regarding the existence, change or termination of a right or obligation, commits the felony of forgery of official documents.

According to section 276 of the Criminal Code, a person who uses a fake or forged private document or a private document with untrue contents for providing evidence for the existence, change or termination of a right or obligation, commits the offence of forgery of private documents.

Under section 304(1) of the Criminal Code, a person who copies or forges money with the purpose of distribution, obtains counterfeit or forged money with the purpose of distribution, exports or imports such money or transports it through the territory of the country, or distributes counterfeit or forged money commits the felony of counterfeiting money.

According to section 318(1) of the Criminal Code, a person who deceives someone, or maintains someone's deception, in order to make unlawful gains, commits the offence of fraud, provided that actual damage has occurred as a result of his conduct.


Violation of Art. 3 and 8;No separate issue under Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a Bulgarian national who was born in 1980.

She alleged that she had been raped by two men on 31 July and 1 August 1995, when she was 14 years and 10 months old. The ensuing investigation came to the conclusion that there was insufficient proof of the applicant having been compelled to have sex.

On 31 July 1995 the applicant and a friend of hers had been waiting to enter a disco bar in the town of K., when three men, P. (21 years old at the time), A. (20 years old at the time) and V.A. (age not specified), arrived in a car owned by P. The applicant knew P. and A. She had met P. in the same disco bar and had danced with him once. A. was the older brother of a classmate of hers.

A. invited the applicant to go with him and his friends to a disco bar in a small town 17 km away. According to the applicant, she agreed on condition that she would be back home before 11 p.m.

In the bar, one or two of the group had drinks. The applicant saw some friends, with whom she had a short chat. According to the applicant, she repeatedly told the others it was time to leave, as it was getting late.

At some time late in the evening, the group left and headed back to K. On the way, they were briefly stopped and checked by traffic police.

A. then suggested stopping for a swim at a nearby reservoir. According to the applicant, they went there despite her objections. She submitted that she had not suspected the men's intentions.

At the reservoir, the applicant remained in the car, in the front passenger seat, saying that she was not interested in swimming. The three men headed towards the water. Soon afterwards, P. came back and sat in the front seat next to the applicant.

In her statements to the investigating authorities, the applicant submitted that P. had then pressed his body against hers, proposed that they “become friends” and started kissing her. The applicant had refused his advances and had asked him to leave. P. had persisted in kissing her while she had tried to push him back. He had then moved the car seat back to a horizontal position, grabbed her hands and pressed them against her back. The applicant had been scared and at the same time embarrassed by the fact that she had put herself in such a situation. She had not had the strength to resist violently or scream. Her efforts to push P. back had been unsuccessful, as he had been far stronger. P. had undressed her partially and had forced her to have sexual intercourse with him.

In her testimony, the applicant stated: “It was my first time and it hurt a lot. I felt sick and I wanted to throw up. I started crying.”

According to P.'s statements, he had had sex with the applicant in the car with her full consent. He had started kissing her, she had responded, and he had tried unsuccessfully to unbutton her jeans or loosen her belt, whereupon she had done so herself and had taken off her pants.

After P. had finished, he left the car and walked towards A. and V.A. In his submissions to the police, A. said that P. had told them that he had “shagged” the applicant. Shortly afterwards, the three men returned to the car and the group drove off.

In her submissions to the investigator, the applicant stated that she had later come to suspect that the three men had planned to have sex with her and had invented the pretext of swimming to drive to a deserted area. In particular, she did not remember A. and V.A. being wet when they had come back to the car, although they had insisted on going to the reservoir for a swim.

The applicant later testified that after the first rape she had been very disturbed and had cried most of the time. According to the version of events given by P. and A. when later questioned, the applicant had been in an excellent mood, had started caressing A., which had irritated P., and had asked to go to a bar or a restaurant. The group had gone to a restaurant, where the applicant had briefly talked with a Ms T., the singer performing there. Ms T. had been sitting at a table there with one Mr M.

Ms T., the singer, stated that on 1 August 1995 she had been in the restaurant with Mr M. Shortly after midnight the applicant, whom she knew vaguely, had approached her and asked whether her group would be performing in the next few days. Ms T. recalled having seen at that moment a man waiting at the door. Having heard the answer to her question, the applicant had left. Ms T. stated that the applicant had appeared cheerful and that there had been nothing unusual in her behaviour.

Mr M. was also questioned by the police. He stated that he knew the applicant very well and that he did not remember having seen her that night.

The applicant disputed the statements of P., A., V.A. and Ms T., maintaining that there had been no visit to a restaurant and that she did not know Ms T. The applicant and her mother later accused Ms T. of perjury (see paragraphs 66-68 below).

Instead of returning to K., at around 3 a.m. the group went to a neighbouring town, where V.A.'s relatives had a house. A., V.A. and the applicant got out of the car. P., who was the owner of the car, drove off.

The three men and a baker, Mr S., called by them as a witness, later maintained that in the meantime there had been a short stop at Mr S.'s bakery. Mr S. allegedly had the key to the house. Mr S., when interrogated, stated that at about 2 a.m. he had given the key to V.A. and had seen the applicant waiting in the car, apparently in a good mood. Loud music had been coming from the car. The applicant disputed that there had been any visit to a baker's shop and accused the baker of perjury. P., A. and V.A. submitted in their statements that they had decided to go to the house as the applicant had told them that she had quarrelled with her mother and did not want to go back home.

The applicant stated to the police that she had felt helpless and in need of protection. As A. was the brother of a classmate of hers, she had expected such protection from him and had followed him and V.A. into a room on the ground floor of the house.

There was one bed in the room and the applicant sat on it. The two men smoked and talked for a while. V.A. then left the room.

The applicant maintained that at that point A. had sat next to her, pushed her down onto the bed, undressed her and forced her to have sex with him. The applicant had not had the strength to resist violently. She had only begged the man to stop. She later related in her statement:

“I started crying and asked him to stop ... He started caressing my breasts and sucking my neck ... At some point he took my jeans and my pants off with his feet. Then he spread my legs apart with his legs and forced his way into me ... [After he finished] I started crying and I continued crying until some time in the morning, when I fell asleep ... [V.A.] woke me up telling me that [A.] had gone to find a car to drive me back to K. I sat on the bed and started crying.”

A.'s position before the police was that he had had sex with the applicant with her full consent.

On the following morning at around 7 a.m., the applicant's mother found her daughter in the house of V.A.'s relatives. The applicant's mother stated that, having learned from neighbours that her daughter had been seen the previous evening with A., she had been on her way to A.'s house when she had met V.A. in the street. V.A. had allegedly tried to mislead the applicant's mother in an effort to gain time and warn A. However, she had insisted.

The applicant and her mother maintained in their submissions during the investigation that the applicant had told her mother right away that she had been raped. A. had also been there. He had told the applicant's mother that “a truck driver” had had sex with her daughter the previous night.

According to A.'s version of events, the applicant and her mother had quarrelled, the applicant allegedly refusing to go with her and telling her to go away. A neighbour, apparently named as a witness by A. or V.A., stated that he had heard the quarrel and, in particular, the refusal of the applicant to leave with her mother and her saying that nothing had happened to her. The applicant accused the witness of perjury.

The applicant and her mother went directly to the local hospital, where they were directed to see a forensic medical examiner. The applicant was examined at about 4 p.m.

The medical examiner found that the hymen had been freshly torn. He also noted grazing on the applicant's neck, measuring 35 mm by 4 mm, and four small oval-shaped bruises. As noted in the medical certificate, the applicant had reported only one rape, stating that it had occurred between 10.30 and 11 p.m. the previous day at the reservoir.

The applicant submitted that during the next few days she had refused to talk to her mother about the incident. She had given no details and had not mentioned the second rape at all. She explained that she lived in a conservative small-town environment where virginity was considered to be an asset for marriage. She felt ashamed of the fact that she had “failed to protect her virginity” and of “what people would say about it”.

On the first evening after the events, on 1 August 1995, P. visited the applicant's family. The applicant and her mother stated that that evening P. had begged for forgiveness and had claimed that he would marry the applicant when she came of age. The applicant's mother had considered that accepting the offer would be reasonable in the circumstances. This had influenced the initial behaviour of the applicant, who had accepted her mother's idea of minimising the damage.

On one of the following evenings, the applicant went out with P. and some of his friends.

P. and V.A., the latter claiming that he had been with P. during the visit to the applicant's house on the evening of 1 August 1995, stated that the applicant's mother had told them that “all pleasure must be paid for” and had tried to extort money from them.

P.'s grandmother also made a statement to the police. She asserted that on an unspecified date the applicant's mother had visited her, trying to extort money.

With regard to that visit and other relevant events, Mrs D., a neighbour and friend of the applicant's mother, stated that the applicant's mother had been very upset about the events and had agreed to her daughter going out with P. as he had maintained that he loved the applicant. The applicant's mother had nevertheless decided to talk to P.'s parents. On an unspecified date Mrs D. and another neighbour had approached the house of P.'s family, but his grandmother had told them to go away, stating that the applicant had slept not only with P. but also with A. At that moment A. had arrived. Mrs D. had asked him whether it was true that he had slept with the applicant. He had confirmed that it was true, adding that he had the money and power to do as he pleased. Until then, the applicant's mother had not known about the second rape.

The applicant submitted that a visit by A.'s father on 8 August 1995 had caused her to break down. She had then confided to her mother about the second rape. On 10 August 1995 the applicant's father returned home, after being absent for several days. The family discussed the matter and decided to file a complaint. The applicant's mother did so on 11 August 1995.

On 11 August 1995 the applicant made a written statement about the events of 31 July and 1 August. On the same day P. and A. were arrested and made written statements. They claimed that the applicant had had sexual intercourse with them of her own free will. The two men were released. Written statements were also made by V.A. and a person who lived next to the house where the second alleged rape had taken place. On 25 August 1995 a police officer drew up a report and forwarded the file to the competent prosecutor.

On 14 November 1995 the district prosecutor opened a criminal investigation into the alleged rape and referred the case to an investigator. No charges were brought.

No action was taken on the case between November 1995 and November 1996.

On 24 August 1995 P. and A. filed complaints with the district prosecutor's office, stating that the applicant and her mother had been harassing them by making false public accusations.

On the basis of these complaints, on 28 August 1995, the district prosecutor ordered a police inquiry. In September and October 1995 several persons were heard and made written statements.

On 25 October 1995 a police officer drew up a report apparently accrediting the allegations of P. and A. and disbelieving the version of the facts as submitted by the applicant and her mother.

On 27 October 1995 the file was transmitted to the district prosecutor's office with jurisdiction to decide whether or not to institute criminal proceedings against the applicant and her mother. It appears that the matter was left hanging and no decision was taken.

Between 2 November and 9 December 1996 the investigator questioned the applicant, her mother and other witnesses. P. and A. were heard as witnesses.

The applicant gave a detailed account of the facts, repeating that P. had overcome her resistance by pressing her against the car seat and twisting her hands, and that thereafter she had been in a state of shock and unable to resist A.

In his evidence, P. claimed that the applicant had actively responded to his advances. He also asserted that the applicant had spoken with Mr M. at the restaurant they had allegedly gone to after having sex.

Both A. and P. stated, inter alia, that shortly after having sex with P. at the reservoir, the applicant had started caressing A. in the car.

On 18 December 1996 the investigator completed his work on the case. He drew up a report stating that there was no evidence that P. and A. had used threats or violence, and proposed that the prosecutor close the case.

On 7 January 1997 the district prosecutor ordered an additional investigation. The order stated that the initial investigation had not been objective, thorough or complete.

On 16 January 1997 the investigator to whom the case had been referred appointed a psychiatrist and a psychologist to answer several questions. The experts were asked, inter alia, whether it was likely that the applicant would have spoken calmly with Ms T., the singer at the restaurant, and then listened to music in the car, if she had just been raped and whether it was likely that several days after the alleged rape the applicant would have gone out with the person who had raped her.

The experts considered that, owing to her naivety and inexperience, the applicant had apparently not considered the possibility that she might be sexually assaulted. There was no indication that she had been threatened or hurt, or that she had been in a state of shock during the events, as she had demonstrated a clear recollection of them. The experts considered that during the events she must have been suddenly overwhelmed by an internal conflict between a natural sexual interest and a sense that the act was reprehensible, which had “reduced her ability to resist and defend herself”. They further found that the applicant was psychologically sound and that she had understood the meaning of the events. In view of her age at the time, however, she “could not assert a stable set of convictions”.

The experts also found that, if there had indeed been a meeting between Ms T. and the applicant after the events at the reservoir – and this was disputed – it was still possible that the applicant could have had a short exchange with Ms T. after being raped. As to the applicant going out with P. several days after the events, this could be easily explained by her family's desire to lend a socially acceptable meaning to the incident.

On 28 February 1997 the investigator concluded his work on the case and drew up a report, again proposing that the case should be closed. He considered that the experts' opinion did not affect his earlier finding that there was no evidence demonstrating the use of force or threats.

On 17 March 1997 the district prosecutor ordered the closure of the criminal investigation. He found, inter alia, that the use of force or threats had not been established beyond reasonable doubt. In particular, no resistance on the applicant's part or attempts to seek help from others had been established.

The applicant lodged consecutive appeals with the regional prosecutor's office and the Chief Public Prosecutor's Office. The appeals were dismissed in decisions of 13 May and 24 June 1997 respectively.

The prosecutors relied, inter alia, on the statements of the alleged perpetrators and V.A. that the applicant had not shown any signs of distress after having sex with P. at the reservoir, and the evidence of the three men and Ms T. that the latter had met the applicant and had spoken with her that night. As regards the applicant's objections that those statements should be rejected as being untrue, the decision of 13 May 1997 stated that “prosecutors' decisions cannot be based on suppositions, and witnesses' statements cannot be rejected only on the basis of doubts, without other evidence ...”.

The decision of 13 May 1997 also stated:

“It is true that, as can be seen from the report of the forensic psychiatric experts, the young age of the applicant and her lack of experience in life meant that she was unable to assert a stable set of convictions, namely to demonstrate firmly her unwillingness to engage in sexual contact. There can be no criminal act under Article 152 §§ 1 (2) and 3 of the Criminal Code, however, unless the applicant was coerced into having sexual intercourse by means of physical force or threats. This presupposes resistance, but there is no evidence of resistance in this particular case. P. and A. could be held criminally responsible only if they understood that they were having sexual intercourse without the applicant's consent and if they used force or made threats precisely with the aim of having sexual intercourse against the applicant's will. There is insufficient evidence to establish that the applicant demonstrated unwillingness to have sexual intercourse and that P. and A. used threats or force.”

It was further noted that the applicant had explained that the bruises on her neck had been caused by sucking.

The decision of 24 June 1997 reiterated those findings, while noting that the statements of Ms T., the singer at the restaurant, were not decisive. It also stated:

“What is decisive in the present case is that it has not been established beyond reasonable doubt that physical or psychological force was used against the applicant and that sexual intercourse took place against her will and despite her resistance. There are no traces of physical force such as bruises, torn clothing, etc. ...

It is true that it is unusual for a girl who is under age and a virgin to have sexual intercourse twice within a short space of time with two different people, but this fact alone is not sufficient to establish that a criminal act took place, in the absence of other evidence and in view of the impossibility of collecting further evidence.”

In June or July 1997 the applicant and her mother requested the institution of criminal proceedings against Ms T. and other witnesses, including V.A., alleging that they had committed perjury in that their statements in connection with the investigation into the rape of the applicant had been false.

On 14 July 1997 the same prosecutor from the district prosecutor's office who had ordered the closure of the rape investigation refused the request, stating that it was unfounded and even abusive, as all the facts had been clarified in previous proceedings.

An ensuing appeal by the applicant was dismissed on 6 February 1998 by the regional prosecutor's office.

In June 2001 the applicant submitted a written opinion by two Bulgarian experts, Dr Svetlozar Vasilev, a psychiatrist, and Mr Valeri Ivanov, a psychologist, who had been asked by the applicant's lawyer to comment on the case.

The experts stated, with reference to scientific publications in several countries, that two patterns of response by rape victims to their attacker were known: violent physical resistance and “frozen fright” (also known as “traumatic psychological infantilism syndrome”). The latter was explained by the fact that any experience-based model of behaviour was inadequate when the victim was faced with the inevitability of rape. As a result the victim, terrorised, often adopted a passive-response model of submission, characteristic of childhood, or sought a psychological dissociation from the event, as if it were not happening to her.

The experts stated that all the scientific publications they had studied indicated that the “frozen-fright pattern” prevailed. Further, they had conducted their own research for the purposes of their written opinion in the present case. They had analysed all the cases of young women aged 14 to 20 who had contacted two specialised treatment programmes for victims of violence in Bulgaria during the period from 1996 to 2001, declaring that they had been raped. Cases that were too different from that of the applicant had been excluded. As a result, twenty-five cases had been identified, in twenty-four of which the victim had not resisted violently, but had reacted with passive submission.

By Article 151 § 1 of the Criminal Code, sexual intercourse with a person under 14 years of age is a punishable offence (statutory rape). Consent is not a valid defence in such cases.

Consent is likewise irrelevant where the victim is more than 14 years old, but did not “understand the essence and meaning of the occurrence” (Article 151 § 2 of the Code). That provision has been applied in cases where the victim did not grasp the meaning of the events owing to a mental disorder (see judgment no. 568 of 18 August 1973, case no. 540/73, Supreme Court-I).

Article 152 § 1 of the 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 the use of force or threats;

(3) who was brought to a state of helplessness by the perpetrator.”

Although lack of consent is mentioned explicitly only in the first sub-paragraph, the Supreme Court has held that it is an element inherent in the whole provision (see judgment no. 568, cited above).

According to judicial practice, the three sub-paragraphs of Article 152 § 1 can only be applied alternatively, each of them referring to a separate factual situation. The Supreme Court has held that general references to two or all of the sub-paragraphs are not acceptable (see judgment no. 247 of 24 April 1974, case no. 201/74, Supreme Court-I; judgment no. 59 of 19 May 1992, case no. 288/90, Supreme Court-I; and many others).

Therefore, an accused person may be found guilty of rape only if it has been established that he had sexual intercourse with a woman in circumstances covered by one of the three sub-paragraphs.

The first and third sub-paragraphs concern particular factual situations where the victim was in a state of helplessness at the time of sexual intercourse. The third sub-paragraph refers to cases where the perpetrator put the victim in a state of helplessness before raping her, whereas the first sub-paragraph refers to cases where he took advantage of the victim's existing state of helplessness.

The courts have stated that a victim is in a state of helplessness (“incapable of defending herself” or “brought to a state of helplessness”) only in circumstances where she has no capacity to resist physically owing to disability, old age or illness (see judgment no. 484 of 29 July 1983, case no. 490/83, and judgment no. 568, cited above) or because of the use of alcohol, medicines or drugs (see judgment no. 126 of 11 April 1977, case no. 69/77, Supreme Court-II).

The second sub-paragraph is the provision applicable in all other cases of alleged rape. Thus, where no special circumstances such as the state of helplessness of the victim are reported, an investigation into an alleged rape will concentrate on establishing whether or not the victim was coerced into having sexual intercourse by the use of force or threats.

It is an established view in the case-law and legal theory that rape under the second sub-paragraph of Article 152 § 1 of the Criminal Code is a “twostep” offence – that is to say, the perpetrator first starts employing force or threats and then penetrates the victim.

The parties in the present case offered their views on the meaning of the words “use of force and threats” and their interpretation in practice (see paragraphs 113, 122 and 123 below).

The Supreme Court has stated that lack of consent is to be deduced from the fact that a situation covered by one of the three sub-paragraphs of Article 152 § 1 has been established, either from the victim's state of helplessness or from the fact that physical or psychological force has been used (see judgment no. 568, cited above).

In one case, the Supreme Court stated that “force” was not only to be understood as direct violence, but could also consist of placing the victim in a situation such that she could see no other solution than to submit against her will (see judgment no. 520 of 19 July 1973, case no. 414/73). In that particular case, the perpetrator, after demonstrating his desire for close relations with the victim by his behaviour over a period of two or three days (following her and trying to hold her and kiss her), entered her room, locked the door and asked her to undress. She refused, whereupon he tried to spread her legs apart. Realising that she had no other choice, the victim opened the window and jumped, sustaining serious injury. The perpetrator was convicted of attempted rape resulting in serious injury.

Legal commentators have not commented in detail on situations where coercion through force or threats may be considered to have been established, apparently taking the view that this was a matter for judicial interpretation (Al. Stoynov, Наказателно право, Особена част, 1997; A. Girginov, Наказателно право, Особена част, 2002). One commentator has stated that the essential characteristic of rape is the victim's lack of consent and that the three sub-paragraphs of Article 152 § 1 of the Criminal Code embody different situations of lack of consent. He further notes that in previous centuries the utmost resistance by the victim was required and that that view is now outdated. Without reference to caselaw, he considers that what is now required is nothing more than the resistance necessary to eliminate any doubt as to the victim's lack of consent (N. Antov, Проблеми на изнасилването, 2003).

Under Article 152 § 1 of the Criminal Code, rape committed by a man against a woman is punishable by two to eight years' imprisonment. At the material time, Article 157 § 1 of the Code provided for one to five years' imprisonment in cases of forced sexual intercourse with a person of the same sex. In 2002 the punishment prescribed under the latter provision was brought into line with that applicable in cases of rape under Article 152 § 1, and is now two to eight years' imprisonment.

At the material time, the age of consent in respect of sexual intercourse with a person of the same sex was 16 years (Article 157 § 2 of the Code). In 2002 it was lowered to 14 years.

In the legal systems of a number of European States, rape and sexual assault are “gender-neutral” offences, whereas in other countries rape may only be committed by a man against a woman.

The minimum age of consent for sexual activity in most States is 14, 15 or 16 years. In some countries, there is a different age of consent for sexual acts without penetration and for sexual acts with penetration, or different penalties depending on the age of the victim. The approaches vary significantly from one country to another.

Article 375 §§ 1 and 2 of the Belgian Criminal Code (referred to by Interights), as amended in 1989, read:

“Any act of sexual penetration, of whatever nature and by whatever means, committed on a person who does not consent to it shall constitute the crime of rape.

In particular, there is no consent where the act is forced by means of violence, coercion or ruse or was made possible by the victim's disability or physical or mental deficiency.”

Article 241 § 1 of the Czech Criminal Code (Law no. 140/1961, as amended) provides:

“A person who coerces another into an act of sexual penetration or a similar sexual act through violence or the threat of imminent violence or by taking advantage of the person's helplessness shall be liable to imprisonment for a term of two to eight years.”

Sections 216(1) and 217 of the Danish Penal Code (referred to by the intervener) provide:

“Any person who coerces [another into having] sexual intercourse by violence or under threat of violence shall be guilty of rape and liable to imprisonment for a term not exceeding eight years. The placing of a person in such a position that the person is unable to resist shall be equivalent to violence ...”

“Any person who by means of unlawful coercion (according to section 260 of this Act) other than violence or the threat of violence procures sexual intercourse for himself, shall be liable to imprisonment for a term not exceeding four years.”

Chapter 20, sections 1 and 3, of the Finnish Penal Code (as amended in 1998) provides:

“Section 1: Rape

(1) A person who coerces another into having sexual intercourse by the use or threat of violence shall be sentenced for rape to imprisonment for at least one year and at most six years.

(2) A person shall also be guilty of rape if he/she takes advantage of the incapacity of another to defend himself/herself and has sexual intercourse with him/her, after rendering him/her unconscious or causing him/her to be in a state of incapacity owing to fear or another similar reason ...

Section 3: Coercion into having sexual intercourse

(1) If the rape, in view of the low level of violence or threat and the other particulars of the offence, is deemed to have been committed under mitigating circumstances, the offender shall be sentenced for coercion into having sexual intercourse to imprisonment for at most three years.

(2) A person who coerces another into having sexual intercourse by a threat other than that referred to in section 1(1) shall be guilty of coercion into having sexual intercourse.”

Articles 222-22, 222-23 and 227-25 of the French Criminal Code provide:

“Sexual aggression is any sexual assault committed by violence, coercion, threats or surprise.”

“Any act of sexual penetration, whatever its nature, committed against another person by violence, coercion, threats or surprise, shall be considered rape. Rape shall be punishable by fifteen years' imprisonment.”

“A sexual offence committed without violence, coercion, threats or surprise by an adult on the person of a minor under 15 years of age shall be punished by five years' imprisonment and a fine of 75,000 euros.”

The following information about French case-law on rape may be gathered from the authoritative publication Juris-Classeur (2002):

(i) The words “violence, coercion, threats or surprise” are given a broad meaning in practice. For example, in one case it was stated that the fact that the victim was begging the perpetrator to stop, without further resistance, where she had previously agreed to enter his car and to be kissed by him, was sufficient to establish that there was rape (judgment of the Court of Cassation, Criminal Division (“Cass. crim.”), 10 July 1973, Bulletin Criminel (“Bull. crim.”) no. 322; Revue de Science Criminelle, 1974, p. 594, observations of Levasseur; see also, for an opposing view, Crim., 11 October 1978, Dalloz 1979. IR, 120). The victim's refusal may be inferred from the circumstances, such as paralysing shock, as a result of which the victim could not protest or escape (Cass. crim., 13 March 1984, Bull. crim. no. 107).

(ii) There is “surprise” where the victim cannot freely consent because, for example, she is physically or mentally disabled (Cass. crim., 8 June 1984, Bull. crim. no. 226), in a particular psychological state, involving depression, fragility, or simply distress (Cass. crim., 12 November 1997, Juris-Data no. 2000-005087; Paris Court of Appeal, 30 March 2000, Juris-Data no. 2000-117239), or where the perpetrator used trickery to deceive the victim as to the real situation (Cass. crim., 14 April 1995, Juris-Data no. 1995-002034).

(iii) The courts have considered that there is always “surprise”, and therefore rape, where the victim is of such a low age as not to understand the concept of sexuality and the nature of the acts being imposed (Cass. crim., 11 June 1992, Bull. crim. no. 228; Limoges Court of Appeal, 5 April 1995, Juris-Data no. 1995-042693; Paris Court of Appeal, 14 November 2000, Juris-Data no. 2000-134658). In some other cases, however, it has been stated that in principle the age of the victim cannot as such, without additional elements, establish the existence of “surprise” (Cass. crim., 1 March 1995, Bull. crim. no. 92).

The relevant part of Article 177 (Sexual coercion; Rape) of the German Criminal Code reads:

“1. Anyone who coerces another person

(1) by force,

(2) by the threat of immediate danger to life or limb, or

(3) by exploiting a situation in which the victim is defenceless and at the mercy of the actions of the perpetrator

into submitting to sexual acts performed by the perpetrator or by a third person or into performing such acts on the perpetrator or on the third person, shall be punished by imprisonment for not less than one year.”

Article 197 § 1 of the Hungarian Criminal Code (Law no. 4 of 1978) provides:

“A person who by violent action or a direct threat to life or limb forces a person to have sexual intercourse, or uses a person's incapacity to defend himself/herself or to express his/her will to have sexual intercourse shall be guilty of a serious offence punishable by imprisonment for two to eight years.”

In Ireland, section 2(1) of the Criminal Law (Rape) Act 1981 and section 9 of the Criminal Law (Rape) (Amendment) Act 1990 (referred to by the intervener) provide:

“A man commits rape if (a) he has sexual intercourse with a woman who at the time of intercourse does not consent and (b) at the time he knows she does not consent or is reckless as to whether or not she is consenting.”

“It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of the person, any failure or omission by that person to offer resistance to the act does not of itself constitute consent to that act.”

Article 180 § 1 of the Slovenian Criminal Code reads:

“Anyone who compels a person of the same or the opposite sex to submit to sexual intercourse by force or the threat of imminent attack on life and limb shall be sentenced to imprisonment from one to ten years.”

In the United Kingdom, section 1(1) of the Sexual Offences (Amendment) Act 1976 (referred to by the intervener) provides:

“[A] man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or is reckless as to whether she consents to it.”

The Committee of Ministers recommends that member States adopt and implement, in the manner most appropriate to each country's national circumstances, a series of measures to combat violence against women. Paragraph 35 of the appendix to the recommendation states that, in the field of criminal law, member States should, inter alia:

“– penalise any sexual act committed against non-consenting persons, even if they do not show signs of resistance;

– penalise any abuse of the position of a perpetrator, and in particular of an adult visà-vis a child.”

In Prosecutor v. Anto Furundžija (case no. IT-95-17/1-T, judgment of 10 December 1998), in the context of the question whether or not forced oral sexual penetration may be characterised as rape under international law, the Trial Chamber made the following relevant remarks about rape under international criminal law:

“The Trial Chamber notes the unchallenged submission ... that rape is a forcible act: this means that the act is 'accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression'. ...

... all jurisdictions surveyed by the Trial Chamber require an element of force, coercion, threat, or acting without the consent of the victim: force is given a broad interpretation and includes rendering the victim helpless.”

The Trial Chamber defined rape as:

“sexual penetration ... by coercion or force or threat of force against the victim or a third person.”

Noting that the terms “coercion”, “force”, or “threat of force” from the Furundžija definition were not intended to be interpreted narrowly, the Trial Chamber in another case (Prosecutor v. Kunarac, Kovač and Vuković, case no. IT-96-23, judgment of 22 February 2001) observed:

“In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person, the Furundžija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim, which ... as discussed below, is in the opinion of this Trial Chamber the accurate scope of this aspect of the definition in international law.

... the basic underlying principle common to [the national legal systems surveyed is] that sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim ... [F]orce, threat of force or coercion ... are certainly the relevant considerations in many legal systems but the full range of [the relevant] provisions ... suggest that the true common denominator which unifies the various systems may be a wider or more basic principle of penalising violations of sexual autonomy. ”

In Kunarac, Kovač and Vuković, a Muslim girl in an occupied area was taken by armed soldiers to a building which served as military headquarters. After being raped by two soldiers there, she was brought to a room where she herself initiated sexual contact with the accused Mr Kunarac, the commanding officer. The Trial Chamber noted that the victim had been told by soldiers that she should satisfy their commander sexually or risk her life. The victim therefore “did not freely consent to any sexual intercourse with Kunarac [as she] was in captivity and in fear for her life”. The Trial Chamber also rejected Kunarac's defence that he was not aware of the fact that the victim had only initiated sexual intercourse with him because she feared for her life. The Chamber found that, even if Kunarac had not heard the threats made by other soldiers, he could not have been “confused” by the behaviour of the victim, given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls in the region.

In the context of the above facts, the Trial Chamber made the following observations on the elements of rape under international law:

“The basic principle which is truly common to [the reviewed] legal systems is that serious violations of sexual autonomy are to be penalised. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant.

In practice, the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions – such as force, threats of force, or taking advantage of a person who is unable to resist. A clear demonstration that such factors negate true consent is found in those jurisdictions where absence of consent is an element of rape and consent is explicitly defined not to exist where factors such as use of force, the unconsciousness or inability to resist of the victim, or misrepresentation by the perpetrator [are present].

... coercion, force, or threat of force [are] not to be interpreted narrowly ... coercion in particular would encompass most conduct which negates consent ...

In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by ... sexual penetration ... where [it] occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.”

In the same case, on an appeal by the perpetrators based on the argument, inter alia, that there was no rape without force or threat of force and the victim's “continuous” or “genuine” resistance, the Appeals Chamber, in its judgment of 12 June 2002, stated:

“The Appellants' bald assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts.

Secondly, with regard to the role of force in the definition of rape, the Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunal's prior definitions of rape. However, in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunal's earlier jurisprudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape. In particular, the Trial Chamber wished to explain that there are “factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”. A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force ...

For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers' residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent.”

In its General Recommendation 19 of 29 January 1992 on violence against women, the Committee made the following recommendation in paragraph 24:

“(a) States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act;

(b) States parties should ensure that laws against ... abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. ...”


Violation of Art. 14+4-3-d;Not necessary to examine Art. 14+6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Giovanni Bonello;Javier Borrego Borrego;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza

The applicant is a Maltese national and lives in Attard, Malta.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a pharmacist in Malta. From 1971 he was placed on the lists of jurors and remained on them until 2005.

Between 1971 and 1997, the applicant was called to serve as a juror in three different sets of criminal proceedings. On these occasions, he was called to serve both as a juror and as a foreman of the jury.

In 1997 the applicant was again called to appear before the Criminal Court to serve as a juror. This time he failed to attend on the requested date and on 14 April 1997 he was fined 100 Maltese liri ((MTL) – approximately 240 euros (EUR)).

The constitutional proceedings

As the applicant failed to pay the fine, on 11 June 1997 the Registrar of the Courts of Malta submitted an application to the Criminal Court. It asked that court to summon the applicant before it and/or to convert the fine imposed into a term of imprisonment.

At the sitting of 26 June 1997 before the Criminal Court, the applicant raised the plea that the fine imposed on him was unconstitutional and constituted a breach of his fundamental rights. He alleged, in particular, that the sanction was discriminatory in terms of Article 45 of the Constitution and Article 14 of the Convention taken in conjunction with Article 4 § 3 (d), because it subjected him to burdens and duties to which other persons in the same position were not subjected. Moreover, the law and/or the domestic practice exempted persons of the female sex from jury service whereas, de facto, men were not offered this exemption.

Considering that the applicant’s plea was not merely frivolous and/or vexatious, on 29 September 1997 the Criminal Court referred it to the First Hall of the Civil Court.

Before the Civil Court, the applicant alleged that the Maltese system penalised men and favoured women, as statistical information showed that during the preceding five years only 3.05% of jurors had been women whereas 96.95% had been men. Moreover, the burden of jury service was not equitably distributed but was placed on a very small proportion of the population: in 1997 the lists of jurors represented only 3.4% of the list of voters. In practice, those who had on one occasion been placed on the lists of jurors would remain on them until they were disqualified, while others who also satisfied all the requirements were de facto exempted from such civic obligation.

In a judgment of 5 February 1999, the Civil Court rejected the applicant’s claims. It held that in stating that every Maltese citizen who had attained the age of 21 qualified to serve as a juror the law did not make any distinction between citizens. More specifically, there was no distinction between men and women. As to the practice criticised by the applicant, the latter had not substantiated his allegation that there were other persons eligible to serve as jurors who managed to avoid performing their duties. Moreover, the applicant had failed to seek exemption from jury service in accordance with domestic law.

The Civil Court also observed that the applicant had not proved that he was being treated differently to such an extent that the burdens and obligations imposed on him were greater than those imposed on another person. In particular, it had not been established that people who had been on the lists of jurors as long as the applicant had been removed without a valid reason, or that persons who were in a situation comparable to that of the applicant were left off the lists. The applicant had also failed to submit any evidence showing that the discrepancies between women and men called to serve as jurors were specifically attributable to an intention to discriminate between the sexes or were aimed at giving an unjust advantage to women in relation to men.

The applicant appealed against the judgment of 5 February 1999 to the Constitutional Court. He observed, in particular, that the existence of discrimination was clearly shown by the statistics he had produced. Given this factual background, it was unnecessary to prove an intention to discriminate on the part of the authorities.

In his submissions, the applicant pointed out that jury service was a burden as it required the person concerned to abandon his or her work in order to attend court hearings regularly; moreover, it imposed a moral burden to judge the innocence or guilt of a person. According to the Constitution of Malta and the Convention, social burdens should be shared by all in an equitable manner. However, statistics showed that lists of foremen were composed of 0.74% of women and 99.26% of men, and that the lists of jurors represented only 3.4% of the list of voters.

In a judgment of 2 November 2001, the Constitutional Court dismissed the applicant’s appeal and confirmed the judgment of the Civil Court.

The Constitutional Court reiterated that neither the law nor the administrative rules in relation to the compilation of the lists of jurors were in any way discriminatory. In fact, the statistics showed that the number of women on the lists of jurors was 145 in 1996 (almost double the number of the previous year), and that this number increased to 2,490 in 1997. Therefore, an irreversible administrative process had been set in motion in order to bring the number of women on the lists into line with that of men.

The Constitutional Court acknowledged, however, that the number of women actually called to serve as jurors was very low: only five per year in the years 1995, 1996 and 1997. This was clearly the result of the jury selection procedure, in which the reasons militating for and against the choice of a certain person as juror were evaluated. The results were dependant on many factors, such as the element of luck, challenges brought by the defence and exemptions granted by the courts. It was true that women were exempted from jury service for social, family and cultural reasons; however, this was perfectly legitimate and lawful when it was as a consequence of a claim by the defence, the prosecutors or the presiding judge.

The Constitutional Court also agreed that it appeared that the manner in which the lists of jurors were compiled favoured a situation in which when a person was placed on the lists he remained on them until the age restriction was reached. Therefore the applicant’s grievance that this system seemed to punish those persons who were on the lists could be justified. Thus, the Constitutional Court suggested that the system be amended and that the lists be periodically changed in order to exclude those persons who had already been called for jury service.

As concerned the applicability of Article 14 of the Convention, the Constitutional Court noted that jury service should be considered “a normal civic obligation” within the meaning of Article 4 of the Convention, and therefore Article 14 came into play. The Constitutional Court considered, however, that the applicant had not been subjected to burdensome treatment simply because he had had to serve as a juror on three occasions over a span of seventeen years. In any case, this circumstance did not entitle him to take the law into his own hands and decide to ignore the court summons. Instead, he should have made use of the ordinary remedies available to him, such as filing a request for exemption from jury service with the competent court. Had this request been refused, he could have appealed.

The Constitutional Court also rejected the applicant’s submission that the fine imposed on him was discriminatory. It observed that anyone who had been fined by the competent court was obliged by law to pay the fine and that anyone who disobeyed an order of a court was liable to be sanctioned.

On an unspecified date in 2003, the applicant petitioned the Registrar of the Criminal Court. He observed that, according to the Government Gazette of 28 August 2003, his name had been registered on the List of Jurors and on the List of Special Jurors. However, as he was a lecturer at the University of Malta, he sought exemption from jury service in accordance with Article 604(1) of the Criminal Code (hereinafter “the CC”).

By a decision of 23 October 2003, the Registrar of the Criminal Court rejected the applicant’s petition.

Having been summoned once again to serve as a juror in another trial, in 2004 the applicant requested to be exempted from jury service under Article 607 of the CC. This application was rejected by the competent domestic court.

On 18 April 2005 the applicant requested once again to be exempted from serving as a juror. He relied on Article 604(1) of the CC, providing an exemption for full-time lecturers at the University. On 25 April 2005 his request was accepted.

According to Article 603(1) of the CC,

“Every person of the age of twenty-one years or upwards, residing in Malta and being a citizen of Malta, shall be qualified to serve as a juror provided such person has an adequate knowledge of the Maltese language, is of good character and is competent to serve as a juror.”

The compilation of the lists of jurors is regulated by Article 605 of the CC. The lists are drawn up by the Commissioner of Police together with two magistrates and the Registrar of the Courts. They are published in the Government Gazette in the month of August each year. Within fifteen days from the publication any person who, not possessing the qualifications required by law to serve as a juror, desires to be struck off the lists may file an application before the Criminal Court. The court shall proceed summarily on the application and the registrar shall note on the lists any correction which the court may order. Subsequently, the names of the jurors are written down on separate ballots of paper and every month ballots are drawn.

Article 604 of the CC provides:

“(1) The following persons are exempted from serving as jurors:

Members of the House of Representatives, judges, clergymen, members of the Armed Forces of Malta, persons holding the office of Head of a Government Department and their deputies, the magistrates, the Registrar of Courts, officers of the Executive Police, professors of the University, teachers of the Government secondary, primary and technical schools, District Medical Officers, health inspectors, the Principal Probation Officer and Probation Officers.

(2) Moreover the court may, on an application to that effect, exempt from serving as a juror any apothecary of a village and any physician, surgeon or obstetrician actually practising his profession, and, in general, any person who has completed the sixtieth year of his age, unless, in some particular case, the court deems otherwise for the ends of justice.

(3) A person who has the care of a family or of a person who suffers from any physical or mental infirmity shall also be exempt from serving as a juror.”

Article 607 of the CC provides that any person who is not qualified or liable to serve as a juror, or who may have special reasons for asking to be exempted from serving as a juror, may bring the matter before the court, by means of an application to be filed within four days after the service of a writ of summons. The court may, “if it deems the reasons alleged to be good, ... order the registrar to cancel the name of such person”.

According to Article 609 of the CC, if a summoned person (that is, a person called to serve as a juror) fails to appear before the court at the time stated in the writ, he will be sentenced by the court to a fine and may be compelled to serve as a juror by means of a warrant of escort or arrest. The court may, on an application to that effect, remit the fine if it is satisfied that there was good cause for the non-appearance.