Judgment (Merits and Just Satisfaction) of Court (Fifth Section), May 28, 2015 (case CASE OF Y. v. SLOVENIA)

JudgeAHLIN J.
DefenseSLOVENIA
Resolution DateMay 28, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

CASE OF Y. v. SLOVENIA

(Application no. 41107/10)

JUDGMENT

STRASBOURG

28 May 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Y. v. Slovenia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

             Mark Villiger, President,              Angelika Nußberger,              Boštjan M. Zupančič,              Ganna Yudkivska,              André Potocki,              Helena Jäderblom,              Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 31 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 41107/10) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Y. (“the applicant”), on 17 July 2010. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court).

  2. The applicant was represented by Mr J. Ahlin, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mrs B. Jovin Hrastnik, State Attorney.

  3. The applicant alleged that the criminal proceedings concerning the sexual assaults against her had been unreasonably delayed, lacked impartiality and exposed her to several traumatic experiences interfering with her personal integrity.

  4. On 20 February 2012 the application was communicated to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

    1. The background

  5. The applicant was born in Ukraine in 1987 and arrived in Slovenia in 2000 with her sister and mother, who married a Slovenian.

  6. Between July and December 2001, at the age of 14, she was allegedly repeatedly sexually assaulted by a family friend X, 55 years old at the time, who together with his wife often took care of her and helped her in preparations for beauty contests.

  7. In July 2002 the applicant told her mother about the alleged sexual assaults by X but was unwilling to talk about them with anyone else.

  8. On 15 July 2002 a priest gave a statement to the Maribor police in which he said that the applicant’s mother had told him about her concern that the applicant had been raped by X.

    1. The police investigation

  9. On 16 July 2002 the applicant’s mother lodged a criminal complaint against X in which she alleged that X had forced the applicant to engage in sexual intercourse with him on several occasions.

  10. On 17 July 2002 the applicant was questioned by the Maribor police and described how X had forced her into various sexual activities. As to the time frame of the assaults, the applicant stated that X had first attempted to kiss her before July 2001, when she had started to model for fashion shows. She proceeded to give account of a number of instances when X had sexually assaulted her. On one occasion X lay on her while she was sleeping at his house and attempted to have sexual intercourse with her, spreading her legs with one hand and putting his other hand over her mouth to prevent her from screaming, but he was interrupted by his younger son coming up the stairs. On another occasion, when they had been at a pool, he had groped her in the water. On yet another occasion X allegedly took the applicant to an abandoned workshop owned by his family and performed oral sex on her. Moreover, according to the applicant, X had forced her to perform oral sex on him at least three times, once at his home, once at his company’s garage and the third time in his van which he had parked in the woods nearby the town. This last time the applicant had allegedly tried to escape; however, unfamiliar with the surroundings, she had come back to the van. The applicant stated that X had on several occasions attempted to have intercourse with her, but that she had not been certain whether he had managed to enter her. She further stated that she had tried to defend herself by crying and pushing X away, but without success.

  11. The applicant was also examined by an expert in gynaecology who found that her hymen was intact. Moreover, in the course of July and August 2002 the police questioned X, who denied any sexual relations with the applicant, and three other witnesses.

  12. Following a series of unsuccessful attempts to obtain concrete information from the police as regards the progress of the investigation, the applicant’s mother complained to the Maribor District State Prosecutor’s Office.

  13. On 27 June 2003 the State Prosecutor’s Office sent a letter to the Maribor police urging them to send them the criminal complaint lodged against X immediately.

  14. On 18 August 2003 the police sent a report to the State Prosecutor’s Office stating that the applicant had failed to provide a detailed account of her allegations and to indicate the locations where the alleged rapes had taken place. The police noted that the applicant had given an impression of being under severe psychological stress and fear of her mother’s reaction. They concluded that it was impossible to confirm her allegation of rape but also equally impossible to establish reasons for her serious emotional distress.

    1. The judicial investigation

  15. On 28 August 2003 the State Prosecutor’s Office lodged a request for a judicial investigation in respect of X based on charges of sexual assault of a minor below the age of fifteen. The request alleged that X had forced the applicant to engage in oral sex and had had sexual intercourse with her on at least three occasions despite her opposition and attempted resistance.

  16. On 7 January 2005 X was summoned to appear before the investigating judge of the Maribor District Court. He refused to give an oral statement. On 10 March 2005 X, represented by a lawyer, submitted his written statement in which he denied the charges. He also submitted a medical report which indicated that his left arm had been disabled since birth.

  17. On 26 May 2005 the investigating judge issued a decision to open a criminal investigation in respect of X. The latter’s appeal against this decision was rejected by the pre-trial panel of the Maribor District Court.

  18. On 17 October 2005 the applicant was examined as a witness before the Ljubljana District Court, which had been asked to perform the examination because the applicant resided in the area. The examination continued on 8 November 2005. X and his counsel were not informed of this examination. The applicant testified in detail as to when, where and how the alleged offences had taken place. She first described the assault which had occurred in X’s house, while she had been sleeping there, reiterating that X had been disturbed by his son. According to the applicant’s statement, the second assault had occurred when, instead of driving the applicant home, X had parked in the woods and started to forcefully kiss her. X had then undressed the applicant, parted her legs with one hand and held her wrists with the other and again attempted to have intercourse with her, but there had been no penetration. The applicant further recounted that X had on another occasion taken her to the family’s abandoned workshop and had performed oral sex on her. She stated that she had attempted to free herself of his grip, but that X had again pinned her wrists down and also slapped her across the face. Again, vaginal intercourse had been attempted but had not actually occurred. X had ordered her not to talk to anyone about them, or else he would have her and her family deported from Slovenia. The applicant added that she remembered these three occasions well and the events had occurred just as she described them, but that there had been a number of similar incidents in the period from July until December 2001.

  19. On 13 and 20 December 2005 X’s wife and another witness were examined by the investigating judge of the Maribor District Court.

  20. On 13 January 2006 the Koper District Court, at the request of the Maribor District Court, examined witness D., who testified that the applicant had told her of the alleged rape.

  21. On 14 April 2006 the investigating judge examined witness H., who was an employee in X’s and his wife’s company. H. testified that she had not noticed X behaving improperly towards the applicant on the company’s premises.

  22. On 16 May 2006 the investigating judge appointed an expert in gynaecology, B., in order to establish the probability of the applicant having engaged in sexual intercourse in the period between July and December 2001. The latter carried out a consultation with the applicant, who had refused a clinical examination. She told B., among other things, that despite the attempts made by X, there had been no actual sexual penetration. During the consultation, the expert confronted the applicant with the orthopaedics report stating that X could not have used his left arm in the ways described by her, to which the applicant answered that she had seen X lift certain burdens. Moreover, B. presented the applicant with the police report stating that she had not been able to give a detailed account of the sexual assaults and specific locations and asked her why she had not used any defence against X, such as scratching or biting. The applicant replied that she had not or could not defend herself. On 19 June 2006 the expert prepared his report which was based on the evidence in the file, including a gynaecological report from 2002 which showed that the applicant’s hymen had been intact at the time, and the conversation with the applicant. He found that there was nothing to indicate with certainty that the applicant had had sexual intercourse with X during the material time. In addition to his medical opinion, the expert commented that there were certain inconsistencies in the applicant’s...

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