Effective investigation of rape allegations - Tyagunova v Russia

In Tyagunova v Russia, the European Court of Human Rights (ECtHR) has scrutinized an investigation of rape allegations in Russia. The Court reiterated its jurisdiction that article 3 and article 8 of the Convention entail a positive obligation to carry out an effective investigation.

Facts

The applicant had attended a small party together with colleagues. On the following day, she reported to the Public Prosecutor’s Office that she had been raped and robbed. According to her account, she had been stopped on her way home from the party by a group of men. These men had threatened her with a knife and raped her. Then they had taken her to a private apartment. In the apartment, there had been a man and a teenage girl. The man had forced her to spend the night in the flat. After she had finally been allowed to leave the flat, she noticed that the jewelry she had worn had disappeared.

The applicant reported the case to the Public Prosecutor’s Office in June 2005. According to Russian law, upon notice of a crime a preliminary investigation is conducted in order to establish whether there are sufficient reasons to start a criminal investigation. In case the perpetrator cannot be identified, the case may be closed. This preliminary investigation is carried out by an investigator. The decision of the investigator as to whether to initiate a criminal procedure or dismiss the case has to be confirmed by the prosecutor.

The investigator questioned the applicant, the man who had taken her to the flat and the applicant’s colleague. He also ordered a medical examination of the applicant. The expert concluded that there were no signs of rape. The investigator dismissed the case due to contradictions in the applicant’s statement, the medical expertise and the fact that the suspect who had been questioned denied the allegations.

The prosecutor quashed the decision to dismiss the case and ordered further investigations. Shortly after, the investigator dismissed the case again. The prosecutor quashed the decision and ordered additional investigations.

The case was dismissed and re-opened several times. In the course of the investigations it turned out that there were traces of sperm on the clothes which the applicant had worn during the night in question. 

However, when the applicant requested a genetic examination, she was informed by the investigator handling the case that the traces had been destroyed during forensic testing.

Finally, the case was dismissed by final decision as far as the rape charges were involved in May 2008.

However, one of the suspects was charged with robbery of the applicant’s jewelry. He pleaded guilty. 

During the trial, the teenage girl, who had been in the flat in which the applicant had been kept for one night, was a witness. She stated that the applicant had been upset and in tears and that she had worn her jeans inside out. She also stated that she realized that the applicant could have been raped. During the investigation, she had never been questioned as a witness.

Assessment by the Court

The European Court of Human Rights scrutinized the facts in light of article 3 ECHR (prohibition of torture) and article 8 ECHR (right to private life and family life) at the same time.

At the outset, the Court summed up the principles regarding the positive obligations to investigate rape allegations which it had set out in M.C v Bulgaria: States are under an obligation to take measures to ensure that persons under their jurisdiction are not ill-treated. As part of this obligation, states have to enact criminal law provisions stipulating adequate punishment for rape and other grave acts affecting the right to private life. 

If there is a suspicion that such a crime has been committed, states which have acceded to the ECHR are obliged to carry out an effective investigation. This obligation may also exist in cases in which state agents have not been involved, because the Convention does not only apply between individuals and states, but to a certain extent also between individuals. However, the scope of positive obligations entailed by the ECHR may differ depending on whether the relationship between individuals is at stake or a state agent is involved.

The Court then applied these principles to the facts of the case: It reiterated that the obligation to conduct an effective investigation is an obligation of means, not of result. This means, for purposes of the ECHR  an investigation is not considered ineffective because it did not yield results. What is important is that steps have been taken which were in principle apt to lead to the identification of the perpetrator. The authorities have to react promptly and available means of evidence such as witness testimony, documents or forensic evidence have to be secured.

The Court pointed out, that the investigation of the rape allegations had not met these requirements: The teenage girl, who had clearly been a possible witness, had never been questioned. While DNA evidence had been found, it had not been analysed. Furthermore, no identity parade for identification of suspects had been conducted.

Due to these shortcoming, the European Court of Human Rights found that Russia as the respondent state had breached its obligation to carry out an effective investigation. The Court found a violation of article 3 and article 8 ECHR.