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Cite as: [2011] ECHR 1744
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FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
29785/07
by H.
against Iceland
The European Court of Human Rights (Fourth Section), sitting on 27 September 2011 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having regard to the above application lodged on 26 June 2007,
Having regard to the observations submitted by the respondent Government, the observations in reply submitted by the applicant and to the Government’s comments on the latter,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms H., is an Icelandic national who was born in 1982. She was represented before the Court by Mr Atli Gíslason and Mrs Jóhanna Katrín Magnúsdóttir, lawyers practising in Reykjavík. The Icelandic Government (“the Government”) were represented by Mrs Björg Thorarensen as their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 November 2002 the applicant attended a birthday party with some friends and had dinner with her father in Reykjavík. After dinner she and her father went to a bar in Reykjavík, where they stayed for some time. Her father bought her a beer, which she left on a table and lost sight of when she was dancing. The applicant submitted that the next thing she could remember was having woken up covered in blood, lying next to an unknown man (“J.”) in an unknown house. She did not know how she had ended up injured in his bed. She had panicked and had left as soon as she could.
1. Medical examination
(a) First examination
On the same morning, 9 November 2002, the applicant went to the Emergency Reception Centre for Victims of Rape and Sexual Abuse at the National and University Hospital, which took blood and urine samples and carried out an examination. The examining medical doctor, Mrs K.A., completed a “Forensic examination report” (file no. 916), dated 9 November 2002. This was a detailed form specifically tailored to instances of “Sexual incident/Sexual assault”, with boxes to be completed under a number of headings and sub-headings.
Under the heading “Description of the Offence”, it appeared that the “Scene” was “unclear”, that the “Attacker” was “unknown”, that the occurrence of “Threats” was “Not known”, that it was “Not known” whether she had been “Forced to take drugs/alcohol” and whether “Violence” had occurred.
Thereafter, the following information was rendered under the heading “Patient’s account”:
“[...] She remembers little of what happened after going inside [the bar], but remembers being out on the dance floor. She does not remember having met anyone she knows, or anyone else apart from her father. She had drunk 1 bottle of white wine and 2 beers since 7 o’clock in the evening. Then she remembers nothing until 10 o’clock this morning when she woke up in a strange house on [R]. She was wearing only a short skirt and a bra. Two men lived in the house who she said had been very decent towards her. They had wrapped her in a duvet and blanket. They said they had found her lying in her own blood down in town. They had taken her home and attended to her, and were going to contact a doctor. [...]”
The report further gave details on “Evidence taken on examination”, “Pelvic examination, Gynaecological examination”, “Injuries and other evidence” (which described injuries to her vulva, knee and legs, supported by drawings and photographs), “Conditions of clothing” and Physical examination”.
Then, under the title “Conditions of examination”, Dr K.A. observed:
“A young woman whose face is swollen from crying. She is evidently undergoing great suffering. She remembers very little of the past night, but has given a clear and coherent description of what she does remember. She makes a good impression and is cooperative. She is very credible. She complains of tenderness and pain in her lower body and has difficulty urinating.”
Under the heading “Patient’s account of events” was listed a series of questions regarding notably the “Attacker’s sexual conduct”, in respect of which “Don’t know” was marked for each question, “Yes” or “No” being the other options.
Under the heading “Physician’s conclusion”, the form set out detailed requirements as to the contents of the assessment.
The examining doctor concluded:
“A girl of twenty who has come to the Emergency Centre for Victims of Rape and Sexual Abuse and thinks she was raped last night. She has blood stains on the inside of her thighs and her lower body is tender. She woke up this morning in a strange house wearing only a bra and a short skirt. She had drunk alcohol of her own free will during the evening. She remembers virtually nothing of what happened during the night.
Examination has shown that she has injuries to her genitals. She has haematoma [2x1cm] on the r. labia majora and a long tear [5 cm] in the labial fold with a flap that has been torn up from the skin. Evidently caused by very rough sexual intercourse. Photographs and drawings are enclosed. Samples were taken from the vulva and vagina for semen tests and a Chlamydia sample was taken, but due to tenderness it was not possible to take more samples.
She also has grazes on her knees and legs, and scratches; it is not clear how these were caused. [...]”
Under the heading “Release of physician’s report to the police”, it is stated that Detective Inspector S.K.R. had received the evidence and the physician’s report on 13 November 2002.
(b) Follow-up examination
On 12 November 2002 the applicant was again examined by Dr K.A., who completed a report on the same date, entitled “Follow-up Appointment I”. It listed a number of questions concerning the “Emotional state and shock reactions that have become more pronounced or appeared for the first time since the attack”. It noted, inter alia, a fear of meeting the attacker by chance, concentration problems due to obsession about the incident and sleeplessness.
The report further noted that she had admitted to having given false information when she first came to the Centre; she knew the identity of the man in question and said he had been lying beside her, naked, when she woke up on 9 November 2002.
Apparently, this follow-up report of 12 November 2002 was received together with the initial report of 9 November 2002 by Detective Inspector S.K.R. on 13 November 2002.
2. Applicant’s complaint to the police
In the meantime, on 10 November 2002 at 9.16 p.m. the applicant lodged a complaint against J. with the police. Interviewed by Detective Inspector S.K.R, she stated that at around 2.30 a.m. she had gone to the bar and continued:
“Dad bought himself a beer and I had a few sips of it. Then he bought me a beer in a glass. I hadn’t felt much alcoholic effect before I drank from the beer that Dad bought me. After that I was dancing on the dance-floor of [the bar]. I remember putting my beer down a few times when I went to urinate; on one occasion I put it down by a small bar counter next to the dance-floor. I lost sight of my beer glass a few times. The last thing I remember from that evening is that I was dancing on the dance-floor. I remember Dad was watching me, and I remember that suddenly it was as if lots of people were on the dance floor, but there had not been many people there while I was dancing at the beginning of the evening. The next thing I remember was that I woke up in a house I didn’t recognise, in a bed I didn’t recognise and beside a man I didn’t recognise. I was wearing only a skirt and a bra. I felt immediately something was wrong. I wrapped the duvet [...] around me and went out of the room; I saw that the man was naked. I looked at a clock on the bedside table and saw that it was about 10 o’clock.”
The applicant further recounted that on her way to the bathroom, she had noticed “a telephone table with a phone on it”. When she had found the bathroom she had gone in and discovered that she had blood on her thighs. She had been unable to urinate. She had examined her lower body and seen the injuries to her genitals. Her knees had also been bruised and she had had scratches on and below her knees.
The applicant stated: “Then I went into the hallway again and phoned my mother.” The applicant had started crying and J. had come out of the bedroom. “He asked me who I was phoning, and I told him and I asked him where I was; then he asked me if I was leaving and I told him I had to go home to my daughter.” The applicant had asked her mother to pick her up and she had then gone looking for her clothes. She had asked J.: “Wasn’t I wearing any clothes when I came here?” to which J. had replied: “No.” The applicant had said: “Surely I didn’t come here like this?” and J. had replied “Yes you did,” and grinned. The applicant had put on a t-shirt belonging to J., her jacket and her boots and gone out. She stated: “I couldn’t find my mobile phone, and he offered to phone it. I gave him my phone number, and he phoned [...]”. At the same time J. had been putting on his outdoor clothes, getting ready to leave along with an older man. They had seemed to be leaving together and J. had told the applicant where he worked.
The applicant’s stepfather had picked her up. When she had got home her mother had noticed that something had happened and asked the applicant, who had shown her the injuries. Her mother had telephoned the emergency service and then taken the applicant to the Emergency Reception Centre for Victims of Sexual Offences.
The applicant stated that she had not told the doctor during her consultation that she had woken up next to this man. She had been in denial that he could have done this to her. She further stated that she had been in deep shock and afraid of pressing charges. She had been very cold, shivered, cried a lot and had much pain from her physical injuries. The applicant had then pointed out:
“[The applicant] says she wishes to state that she is absolutely certain that she did not go home with this man of her own free will. She wishes to state that she has only had close relationships with two men in her life, one of them being the father of her child. She says she has never experienced a ‘blackout’ when drinking alcohol. She says she has never abused alcohol. She says she considers it likely that something was put in the beer she drank last at [the bar]. She says she can tolerate drinking a considerable amount of alcohol before feeling the effects. Also, she does not think it normal that she would not have woken up when suffering her injuries.”
The applicant continued by affirming that when she had woken up she had felt as if a heavy weight was pressing down on her and that she was paralysed. She had also had a headache. She intended to press charges and to demand that the perpetrator be punished and she reserved the right to demand compensation at a later stage. Her interview ended at 11.44 p.m.
The applicant was assisted by an officially appointed lawyer throughout the criminal investigation.
3. Measures taken by the police following the applicant’s complaint
(a) Questioning of J., fingerprints, DNA samples and photographs
On 11 November 2002 at 4.55 p.m. the police questioned J. He was informed of the charges against him and invited to comment on them. He stated:
“I went out alone to enjoy myself last Friday night. I had drunk about eight cans of beer and felt the strong affect of the alcohol. Between one and two o’clock I went to the bar [...]. There I got talking with a man, an Icelander, who was sitting at a table. I sat with him and we started talking about this and that. After I had been sitting there with him for some time a girl came to the table and it turned out that she was this man’s daughter. I started looking into her eyes and I thought I felt some sort of current between us. The next thing I knew we were inside the women’s toilet in [the bar] and had started kissing. Then we went out onto the dance-floor and danced for a bit. I thought this girl was about as drunk as I was. But I don’t remember having seen her drink anything alcoholic while we were there. Then we went back together to the women’s toilet and started kissing again. While we were kissing, a doorman came into the toilet and threw me out of it, and out of [the bar].”
J. stated that he had waited outside for a short while and then the applicant had come out and they had taken a taxi to J.’s house. The next morning she had given J. her phone number so he could phone her again. He had tried to phone her the next day when he had found her underpants and her top but no one had answered.
At this point, at 5.40 p.m., the questioning stopped for a moment while the police took J. to the technical division where he was photographed and his fingerprints taken. DNA samples were also taken.
The questioning continued at 6.01 p.m. During this part of the questioning J. was asked direct questions and was presented with the applicant’s testimony.
J. was asked why he had asked the applicant to go home with him. He replied that he had wanted to have sex with her but that had not happened as he had thought she was menstruating. J. stated that it was not true that she had woken up dressed in a skirt and a bra and he had been naked. She had been naked and he had been wearing his underpants.
About the applicant’s statement that she had had “blood all over her thighs”, J. stated that it could have been so; he had seen blood on the front of her thighs before going to sleep. When presented with the applicant’s detailed account of her injuries, bruises and scratches J. replied that he knew nothing about it.
When invited to comment on the applicant’s rendering of her observations about her clothing and his statements in reply, J. stated that he did not remember having said what she indicated.
J. was told that the applicant had said that she had given him “her mobile phone number so that [he] could phone it there and then and [sic] she could hear it ring so that she could find it.” J. stated that she had given him his phone number so that he could phone her later, that he did not remember her phone number but that he had it saved in his phone.
J. was further asked to comment on the applicant’s statement that “she remember[ed] nothing from about half past two” in the morning until she had woken up beside him at 10 a.m. J. stated that he knew nothing about that.
J. was then asked whether he had given the applicant “any sort of drug”, to which he replied: “Certainly not.” He was asked whether he had taken drugs recently and he stated that he had not. When asked whether he had “assault[ed the applicant] sexually,” he stated that he had not. When asked whether he had contacted her after the morning of 9 November, he stated that he had tried to phone her the day before the questioning [10 November] because he had found her clothes but no one had answered.
J. further stated that he did not understand the case and that he had no further statements.
His defence lawyer requested that he be asked whether he had seen the applicant having any contact with other men at the bar, apart from J. and her father. J. stated that he had seen her talking to some other men while they had been dancing. He further stated that he had been quite drunk at the time.
(b) Search carried out of J.’s home
On the same date, at 7.05 p.m., the police carried out a search of J.’s home. J. gave them underwear and a T-shirt belonging to the applicant. The police found no further evidence during the search but stated in the search report that the room had appeared to have been recently cleaned. J.’s grandmother had told the police that she had cleaned the room the day before and changed the bedclothes. She could recall that there had been bloodstains on the bedclothes that she had taken off from the bed.
(c) Interview of the applicant’s father
On 12 November 2002 the police interviewed the applicant’s father. He stated that he and the applicant had gone to the bar at around 2.30 a.m. He had bought beers for them and they had sat down at a table and talked. The applicant had gone to the dance floor to dance with some people she appeared to know. He had seen a young man putting his arms around the applicant while she had been talking on the phone and he had embraced her. It had appeared as if she had not approved of this and that she had not known the man at all. The applicant’s father had told the man [J.] that he was her father and that this was not “gentlemanly behaviour”. The man had taken it well and sat down at the table with him. J. had repeatedly expressed his feelings towards the applicant. J. had invited the applicant to dance and she had gone with him to the dance floor. They had danced for a short time and then J. had come to take his jacket, which he had left by the table. At around 5 a.m. the applicant’s father had noticed that she was gone. He had waited for about an hour and then he had gone, taking her phone, which she had left on the table, with him.
(d) Interview of doorman Mr S.
On 13 November 2002 the police interviewed Mr S., the doorman at the bar on the night in question, who had stated:
“I was working at [the bar in question] on the night in question; I work there sometimes as a doorman. I remember that [x], the son of the owner of [the bar], came to me and said that there was a man and a woman in the men’s toilet having intercourse. This happens quite often, and when it does we doormen put a stop to it. I went into the men’s toilet and saw straight away that there were two people in one of the toilet cubicles. I knocked a few times because I could hear that there was more than one person in the toilet cubicle. After a little while I asked if there was more than one person in there. A man then answered me and said ‘Wait a moment, there’s been a slight accident.’ Then I knocked again and asked the man to open the door, and I tried to open it myself but I couldn’t. Then I told the man again to open it, and after about 5-10 minutes the man opened the door. Then I saw that there was a woman and a man inside; the woman was about 22 years old, blonde, about 170 cm tall and wearing glasses; her hair was in a pony-tail and reached down just below her shoulders; the man was small and stocky. I saw straight away that there was a lot of blood in there, both on the walls and on the toilet itself, that is, on the seat and the cistern. I also saw blood on the floor. I saw that the woman had quite a lot of blood on her hands, but I didn’t see any blood on him.
I offered to call an ambulance or the police for them, but the man himself turned this down. The woman did not say anything. I then showed her into the women’s toilet so she could wash herself, and I ordered him out into the hall to begin with. I think it was about five o’clock at this stage. I thought it must have been menstrual blood. Then I went out front and told the doorman, [Sn], about the blood and that something had been going on inside. [S] then told the owners of [the bar] about it.
After a short time I then went into the women’s toilet to see about this girl, but when I went in there she wasn’t anywhere near the washbasins. Some girls who were in there indicated to me that there was someone inside one of the toilet cubicles. I went over to the cubicle and knocked, and then I heard that there was more than one person inside the cubicle. This was the largest cubicle in the women’s toilet. They opened the door to me, and I saw that the man had come to her and she was sitting on the toilet. She still had blood on her hands. I didn’t think the man was very drunk; I even thought he was completely sober. On the other hand I thought she was very drunk. I had seen her earlier in the evening and noticed that she was rather drunk. I took the man outside and asked the doormen not to let him in again. The man didn’t show any resistance to this. Then I went back into the women’s toilet, and the woman had come out of the cubicle and was washing her hands. I asked her if she would like to call an ambulance or the police, but she just shook her head.
I saw that she was in a really bad state, so I went with her out to the door to the street and told her to take a taxi and go home. I didn’t see her again that night. I think this all happened between 04:30 and 05.00.
I remember she went outside several times during the evening to get fresh air. I recognise this woman, as she comes regularly to [the bar].”
(e) Forensic examinations
On different dates between 12 and 18 November 2002 the police photographed and analysed the applicant’s skirt, T-shirt and underwear, in order to identify stains of blood and other organic substances, notably by DNA tests, as well as the bruises on her arms and legs. This information was compiled in a report dated 19 November 2002.
The police requested that tests be carried out on the samples for alcohol and drugs, with specific tests for drugs that could impair judgment. These were samples that had been taken from the applicant when she came to the Emergency Reception Centre on 9 November 2002 as described above. The Pharmacology and Toxicology Laboratory issued the results in a report dated 16 December 2002:
“Ethanol was found to be present in a concentration of 0.62‰ in the blood and in a concentration of 1.78‰ in the urine. Amphetamines, benzodiazepine compounds, cannabinoids, cocain and morphine drugs were not present in measurable quantities in the urine. Gamma-hydroxybutyric acid was not present in measurable quantities in the urine. A standard drug scan of the urine did not detect any drugs that can be found using that method.
The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol a few hours before the blood sample was taken.”
The samples taken from the applicant at the Emergency Reception Centre were sent to a forensic laboratory for analysis. The assessment from the University Pathology Laboratory, dated 26 November 2002, includes the following statement:
“According to the foregoing, no sperm cells were detected, [...] nor was there any indication of the presence of semen in the samples taken from the plaintiff or on her clothing (underpants and skirt).”
(f) Interviews of other witnesses and additional taking of evidence
On different dates between 12 November 2002 and 3 January 2003 the police interviewed several people, mostly friends of the applicant who had met her on the night in question, and also her mother and J.’s grandmother, the grandfather having availed himself of his right not to testify. The grandmother stated, inter alia, that when she had removed the bed clothes she had noticed a bloodstain on the duvet cover and that she had not given this any further thought. She asked J. whether he had hurt himself and he had replied that he had hurt his finger.
The police photographed J.’s home and the bar. The photographs were compiled in reports dated 15 November 2002 and 6 March 2003, respectively.
(g) Second interview of the applicant
On 18 February 2003 the police again interviewed the applicant. She was asked whether she wished to change or add anything to her previous statement. She stated that she did not.
She was then confronted with the statement of her father regarding her interactions with J. on the night in question. She stated that she did not remember a man embracing her but she did remember her father standing up while she had been talking on the phone. She had been talking to her friend, G. She further stated that she did remember dancing after talking on the phone but that she did not remember dancing with J.
The applicant was then confronted with the statement of the doorman S. regarding, among other things, his dealings with her and J. in the toilet. She stated that she had nothing to say about the statement, she did “not remember this happening” and referred to her earlier statement.
The applicant was further confronted with parts of J.’s testimony regarding their contact in the bar. She replied that since she did not remember having seen J. at the bar she could not comment on this, and that she remembered only that the first time she had seen him was when she had woken up beside him in the morning.
Lastly, she was confronted with the results of the tests of alcohol and drugs in her blood: “The only thing I have to say about this assessment is that it does not fit with the amount of alcohol I remember drinking.”
(h) Second interrogation of J.
On 8 April 2003 Officer S.K.R., accompanied by Officer G.P., went to Lund in Sweden, where suspect J. lived as a student, in order to question him further.
Officer S.K.R. informed J. that the investigation had revealed that he had gone into the toilet in the bar twice with the applicant, first in the men’s toilet, then in the women’s toilet. Officer S.K.R. asked him when it was decided that they would go into the toilet, what had happened between them there and confronted him with specific parts of the testimony of doorman S., the applicant’s mother, and the applicant herself.
J. said that they had gone into the men’s toilet together, where they had closed the door and begun kissing. They had had oral sex. J. gave a detailed account of the event from the moment they entered the toilets until they were ordered to leave by the doorman. He said that the applicant had taken her underpants off, possibly before her injuries, but had not put them on again before leaving the toilet; he had therefore collected them and put them in his pocket. She had already started to bleed between her legs. He said he had then followed the applicant into the women’s toilet, but nothing had happened between them because the doorman had been so quick to follow them in there and had thrown him out of the bar. He said he had waited outside and that the plaintiff had come out shortly afterwards and had sat down on the steps. He had called a taxi and asked the plaintiff if she was going to come home with him which she had done. In his house they had begun undressing each other, and she had been completely naked. He had seen that there was blood coming from her genitals, and he had thought she was starting her period. He denied having had intercourse with her or having moved his body as if he had been.
Suspect J. was questioned about how it was possible that there was no blood on the applicant’s underwear even though she had sustained serious injuries to her genitals. J. said that before he had left the men’s toilet he had taken her underpants and put them in his pocket.
When confronted with doorman S.’s statement, J. commented that he could not remember having told the doorman that there had been a slight accident, but he could remember that the applicant was bleeding between her legs, the causes for which he had ignored.
Officer S.K.R. then asked J. what he had meant when he had said that there had been a slight accident, to which J. responded that he could not remember having said these words when the doorman had told him to open the door.
Nor could J. remember that the doorman had offered to call an ambulance or the police.
Officer S.K.R. then informed J. of the applicant’s injuries and of the assessment made by the Emergency Reception Centre for Victims of Rape and Sexual Abuse, where the applicant had been examined immediately after leaving his home, that she had received these injuries from very rough sexual intercourse. In response to this, J. denied having had sexual intercourse with the applicant either at the bar or after they had gone to his home. He could not offer an explanation regarding the injuries described to him. He said that he had lain on top of the applicant while kissing her and it was perhaps not impossible that the buttons or the zip on his trousers fly had caused the injuries. He did not remember whether the jeans he was wearing that night had buttons or a zip.
4. Decision of the Director of Public Prosecutions to discontinue the case
On 6 August 2003 the Director of Public Prosecutions informed the applicant and J. that in view of the state of the evidence, which was insufficient for securing a conviction for rape, the case was closed.
On 28 August 2003, after the applicant’s lawyer had requested under Article 114 § 1 of the Code of Criminal Procedure a written explanation of the reasons, the prosecution services replied:
“The plaintiff claims that she has no memory of the events in the case, and considers that this was a consequence of ‘something having been put in the beer from which she had her last drink in [the bar],’ and not from her own consumption of alcohol. In the investigation of the case, blood and urine samples were taken from the plaintiff, and it was requested that these be tested for alcohol and for drugs which can affect judgment. No common drugs of this type were found, but the assessment by the Pharmacology and Toxicology Laboratory includes the following statement: ‘The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol a few hours before the blood sample was taken.’
From the description given by the doorman at [the bar], who on two occasions had to deal with the plaintiff and the accused, first in the women’s toilet and then in the men’s toilet of the bar, the only conclusion to be drawn is that the plaintiff had by then already suffered the injuries to her genitals which you mention in your letter. The plaintiff made no complaints regarding her dealings with the accused when the doorman spoke to her; this happened on two occasions, and amongst other things he offered to call an ambulance or the police, but his offer was rejected. No signs of sperm were found in the samples taken from the plaintiff, which can corroborate the statement by the accused that he did not have sexual intercourse with the plaintiff. On the other hand, he admitted that other sexual acts had taken place between them at the bar, but did not admit to further sexual acts with the plaintiff after they arrived at his home.”
5. Subsequent events and applicant’s request for reopening of the investigation
The applicant underwent aesthetic surgery in March 2006 on the injuries sustained to the outside of her genitals. In this connection the surgeon stated that the damage could not be repaired perfectly. He could not ascertain the causes but referred the applicant to the doctor who had examined her immediately after the incident. According to a psychologist’s statement of 10 April 2006, the applicant had many of the symptoms of stress and trauma that were common in victims of sexual violence.
On 29 June 2006, almost three years after the Director of Public Prosecutions announced his decision not to prosecute, the applicant’s new representative requested that the case be reopened. In his request he stated that the investigation had been substantially flawed and that the case had not received priority attention from the police. The request was accompanied by documents testifying to the psychological treatment the applicant had undergone since the incident and certificates regarding the mental and physical consequences of the alleged rape. On 23 August 2006 the Director of Public Prosecutions rejected the applicant’s request. In his letter the Director explained the legal conditions for a case to be reopened, namely, that a case could not be reopened unless significant new evidence had come to light or was likely to come to light. He further described the evidence and the facts of the case. After describing the materials accompanying the request, he stated:
“The materials accompanying the request for reopening of the case contain, first and foremost, further descriptions of [H.’s] emotional and mental state following the incidents to which the investigation materials of the case refer, as is discussed above.
[H.’s] emotional and mental suffering, to which the new materials bear witness, are doubtless the consequences of what happened to her in the early hours of 9 November 2002. On the other hand, these materials are not considered as further illuminating what really happened in the dealings between her and the defendant on the night in question. From this it follows that the conditions for the reopening of the case under the third paragraph of Article 7 of the Code of Criminal Procedure [in force at the relevant time] have not been met.”
6. Complaints to the Minister of Justice
On 12 September 2006 the applicant’s representative wrote a letter to the Minister of Justice marked “Confidential” in which he criticised the way the authorities had handled the case. He stated that H. had entrusted him with lodging an application with the European Court of Human Rights regarding the case, but before doing so, he considered it right to give the Minister of Justice the opportunity to examine her case and redress her position.
On 6 October 2006 the Ministry replied. After describing the events of the case, the letter stated:
“The scope available to the Minister of Justice to review decisions by the Director of Public Prosecutions regarding the discontinuance of a case is restricted to the condition that the decision is considered as being at variance with the law, or extraordinary in some other respect (compare with the second paragraph of Article 26 of the Code of Criminal Procedure [in force at the relevant time]). This case is not considered to be of such a type as to make it appropriate to apply this provision.”
On 16 October 2006 the applicant’s representative wrote another letter to the Ministry in which he explained that the purpose of the previous letter had been twofold: to have the decision of the Director of Public Prosecutions revised and to request the Ministry to compensate the applicant for the damage she had suffered.
On 28 November 2006 the Ministry informed the applicant’s representative that it had forwarded the claim for compensation to the Attorney-General in Civil Matters who was the competent authority to deal with such claims against the State. On 29 December 2006 the Attorney-General rejected the applicant’s claim with the following arguments:
“In the view of the Attorney-General, no legal grounds exist for granting the aforementioned claims by your client. In this connection, reference may be made to the judgment of the Supreme Court of Iceland in case no. 178/2001. The following is taken verbatim from Section II of the judgment:
‘Under the second paragraph of Article 25 of Act no. 19/1991 [the Code of Criminal Procedure in force at the relevant time], with subsequent amendments, the Director of Public Prosecutions is the supreme authority for exercising the power of prosecution. In exercising it, he is independent of the will of the government authorities and of other parties; under the first sentence of the first paragraph of Article 26 of the same Act, the Minister of Justice monitors the exercise of the power of prosecution.
The prosecution has an obligation to take measures to ensure that cases are investigated and that they are then brought to a conclusion as quickly as possible and in a manner that can be regarded as normal. Failures to meet this obligation may result in liability on the part of the civil servant involved, in accordance with the legislation and rules applying to civil servants. Actions taken by the prosecution involving specified coercive measures may also entail compensatory liability towards those against whom they are applied in accordance with the provisions of section XXI of Act no. 19/1991 or the general principles of Tort Law. This basis for action does not apply to those who suffer injury or damage caused by a criminal offender. The injured party is to have an opportunity to lodge a claim for compensation against the offender in the case, but in other respects no legal relationship exists between the injured party and the prosecution. Neither the injured party nor other parties are expected to influence individual decisions taken by the Director of Public Prosecutions in connection with the exercise of the power of prosecution; regarding such decisions, the Director of Public Prosecutions is independent in his work, as has been stated above. This applies equally to his assessment of whether any necessity exists that justifies a demand that a suspect or an accused person be subjected to coercive measures. From the foregoing it follows that an injured party cannot lodge a compensatory claim against the defendant at a later date based on the assertion that measures, or measures in addition to those that were taken by the authority for exercising the power of prosecution, were needed against the alleged offender. [...].’
The Attorney-General considers it beyond doubt that the above case-law of the Supreme Court applies to your client’s claim for compensation. With reference to this, your client’s compensation claim is rejected on the grounds that no basis can be found, either in Icelandic legislation or in case-law, for any right to compensation on the part of your client against the Icelandic State.”
No judicial appeal was lodged against the Attorney-General’s above decision.
B. Relevant domestic law
At the material time Articles 194 and 196 of the Penal Code provided:
Article 194
“Any person who has sexual intercourse or other sexual relations with a person by means of using violence or the threat of violence shall be imprisoned for a minimum of 1 year and a maximum of 16 years. ‘Violence’ here refers to the deprivation of autonomy by means of confinement, drugs or other comparable means.”
Article 196
“Any person who exploits a person’s psychiatric disorder or other mental handicap, or the fact that, for other reasons, he or she is not in a condition to be able to resist the action or to understand its significance, in order to have sexual intercourse or other sexual relations with that person, shall be imprisoned for up to 6 years.”
The Code of Criminal Procedure contained the following provisions of relevance:
Article 112
“After receiving the materials in a case and establishing that the investigation is complete, the prosecutor shall consider whether or not any person is to be prosecuted. If he considers that what has been revealed is not sufficient, or likely, to result in a conviction, he shall take no action; otherwise, he shall put the case before a court as provided for under Article 116.”
Article 114 § 1
“If a case is dropped under Article 112, or prosecution is discontinued under Article 113, the prosecutor who took that decision shall inform the accused person of it and also the victim, where the victim’s identity is known. Reasons for the decision shall be given if requested.”
Article 76 § 3
“If an investigation against an accused person has been discontinued because the case materials are not considered to constitute sufficient evidence for an indictment, the investigation should not then be reopened against that person unless new case materials have come to light or are likely to come to light.”
Article 26 § 2
“If the Minister of Justice considers the dropping of a case by the Director of Public Prosecutions to be at variance with the law, or out of the question on other grounds, he may recommend to the President of Iceland that the decision by the Director of Public Prosecutions be quashed. In such cases, the Minister of Justice shall appoint a special prosecutor to handle the case.”
THE LAW
The applicant maintained that the shortcomings in the investigation were so grave, and the legislation and practice and its application in the case at hand had such significant flaws, as to amount to a breach of the State’s positive obligations under Articles 3, 8 and 13 of the Convention, which, in so far as relevant, read:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8 § 1
“Everyone has the right to respect for his private ... life ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government invited the Court to declare the application inadmissible under Article 35 §§ 1 and 4 of the Convention on the ground that the applicant had failed to comply with the six-month time-limit. In the alternative, they requested the Court to declare it inadmissible under these provisions as the applicant had failed to exhaust domestic remedies. In any event, the Government asked the Court to reject the applicant’s complaint of violations of Articles 3, 8 and 13. They submitted that all procedural obligations deriving from these Articles had been met in her case.
The Court will first consider whether the application is inadmissible on grounds of failure to exhaust domestic remedies or the six-month time-limit.
A. Submissions of the Government
The Government invited the Court to declare the application inadmissible on the ground that it had not been introduced within six months from the date on which the final domestic decision had been taken as required by Article 35 § 1 of the Convention. The applicant had been informed of the decision to discontinue the investigation in a letter of 6 August 2003 from the Director of Public Prosecutions. She had requested further reasoning from the prosecution authorities which she had received in a letter of 28 August 2003. Following this decision, the applicant had taken no measures, such as seeking further remedies to reverse this conclusion or attempting to have offences against her person recognised in some other way. In the Government’s opinion this date should be taken as the latest possible date of the final domestic decision and consequently, the final date for submitting a complaint to the Court had been 28 February 2004.
The Government stressed that the applicant’s request for the reopening of the case had been submitted on 29 June 2006, namely, two years and ten months after the prosecution’s decision had been announced. The subsequent rejection by the Director of Public Prosecutions could not, in the Governments view, be taken into account in the calculation of the six-month time-limit. Since no new evidence had been submitted with the request it had been clear from the outset that this remedy was highly unlikely to yield any results. The request had primarily been based on the applicant’s criticism of the investigation and could therefore have been presented immediately after the case had been closed.
The Government referred to the Court’s established case-law stating that time-limits did not run from the date of decisions resulting from extraordinary remedies such as requests for pardon or applications to reopen proceedings and submitted that the same applied to requests for reopening criminal investigations.
Should the Court not accept this reasoning and take the view that the refusal by the Director of Public Prosecutions to reopen the case marked a new beginning of the six-month period, the Government argued that the application would still have been lodged outside the six-month time-limit. In this case, the final decision would have been the letter of the Director of Public Prosecutions of 23 August 2006 or the Ministry of Justice’s letter of 6 October 2006, while the application had been lodged on 27 June 2007, that is, more than six months after these dates.
The Government submitted that the attempts by the applicant’s representative to demand compensation for the injuries and damage sustained by the applicant had been completely unrealistic. There had been no basis in Icelandic law for the Attorney-General to accede to this request, as clearly stated in his letter of 29 December 2006.
In any event, the Government argued that the application was inadmissible since the applicant had failed to exhaust all domestic remedies as required by Article 35 § 1. In their view, she could have instituted civil compensation proceedings before the courts against the alleged perpetrator. The Government referred to a Supreme Court judgment from 2005 in which compensation for non-pecuniary damage had been awarded in a similar case.
B. Submissions of the applicant
The applicant noted that there was no time-limit in domestic law for filing a plea for the reopening of a criminal investigation. The delay of two years and ten months had been due to the fact that, in order to be able to refer the case to superior authorities for a final decision, it had been necessary for her to adduce new information and that, to this end, she had had to exhaust all means of gathering new material.
The new material, which had come to light some considerable time after the decision to discontinue the investigation, had consisted of a doctor’s certificate concerning the applicant’s physical injuries and a certificate from a psychologist about her mental suffering. Several permanent effects of the assault had not been confirmed until long after the event. The doctor’s certificate had shown that the injuries to the applicant’s genitals had not only been very serious but probably permanent.
This information should have given the authorities reason to consider reopening the case and to look further into what could have caused such severe injuries. The certificate from the psychologist had strongly indicated that she had been the victim of rape and that her mental suffering had no other plausible explanation. The assessment of these consequences and the applicant’s physical recovery had taken considerable time. She stressed that the decision to discontinue the criminal investigation was not a judgment and took the view that the situation was different when no judicial process had taken place.
The applicant, invoking the decision of the former European Commission of Human Rights in Nielsen v. Denmark (no. 343/57, Commission decision of 2 September 1959, Yearbook 2, pp. 442-444), argued that a request for reopening of a criminal investigation was an effective and adequate remedy in the circumstances of this case. However, she rejected the Government’s view that, in that case, the last final decision would be that of 6 October 2006 of the Ministry of Justice. Her principal claim had been to have the case reopened and the compensation claim had been a secondary request, based on the established principle of the Law of Torts that the State was responsible for unlawful actions of State agents, even in the absence of specific allowances for such responsibility in statutory law.
Relying on the Court’s judgment in M.C. v. Bulgaria (no. 39272/98, ECHR 2003 XII), the applicant argued that the State, even in the presence of case-law of the Supreme Court which suggested that there were no legal grounds for acceding to such a request, should have reconsidered its approach to such claims in the light of the circumstances of the case and the case-law of the Court. Therefore, the relevant final domestic decision had been taken on 29 December 2006, the date of the Attorney-General’s letter rejecting her compensation claim, and, in her view, the application had therefore been lodged within the six-month time-limit in accordance with Article 35 § 1.
The applicant submitted that the reason why she had not lodged a judicial appeal against the Attorney-General’s decision of 26 December 2006 was that it was clearly the position under Icelandic law that a suit against the State on the basis of shortcomings in an investigation by the police and other authorities would have been dismissed on procedural grounds, namely that the applicant would not be considered to have sufficient legitimate interest in obtaining a judgment.
The applicant further disputed the Government’s view that she had not exhausted domestic remedies. She argued that a civil claim against the perpetrator did not constitute an effective remedy for the purposes of this application since her complaint regarded the negligence on the part of the investigative authorities.
C. Assessment by the Court
The Court first rejects the Government’s argument that by having omitted to bring civil compensation proceedings against J., the applicant had failed to exhaust domestic remedies. This would not have provided her with redress for her complaint under the Convention, which first and foremost concerns the lack of an effective police investigation.
However, the issue whether the applicant can be deemed to have complied with the six-month time-limit under Article 35 § 1 of the Convention appears more problematic.
The Court observes that on 6 August 2003 the Director of Public Prosecutions, the highest authority empowered to prosecute, decided to close the investigation in view of the state of the evidence that was insufficient for securing a conviction for rape. At the applicant’s request, the Director gave reasons for the decision on 28 August 2003. In the Court’s view, this decision ought to be considered as the final decision for the purposes of the calculation of the six-month time-limit under Article 35 § 1 of the Convention.
The Court does not consider that the decisions taken subsequently on the applicant’s request for the reopening of the investigation can be taken into account in the calculation of the six-month time-limit. Whilst the applicant’s allegations under the Convention essentially related to various shortcomings in the investigations that were closed in August 2003, it does not appear that the grounds adduced for reopening were such as could have effectively and sufficiently redressed those shortcomings. What is more, the request for reopening was submitted no less than two years and ten months after the decision of August 2003 to drop the case.
In this connection it should be reiterated that, according to its settled case-law, an application for the reopening of proceedings or similar extraordinary remedies cannot, as a general rule, be taken into account in the application of Article 35 § 1 of the Convention (see, for instance, Withey v. the United Kingdom (dec.), no. 59493/00, ECHR 2003 X). While it is true that the Convention institutions have exceptionally shown a certain degree of flexibility in this respect in the past, notably in some earlier decisions (see Nielsen, cited above, and X. and Church of Scientology v. Sweden, no. 7805/77, Commission decision of 5 May 1979, Decisions and Reports 16, p. 71), the Court discerns no reason for departing from this rule in the instant case (for a recent affirmation of the rule, see Tucka v. the United Kingdom (dec.), no. 34586/10, 18 January 2011; and Kolu v. Finland (dec.), no. 56463/10, 3 May 2011).
In any event, both the decision of the Director of Public Prosecutions of 23 August 2006 to reject her request for reopening and the Ministry’s reply of 6 October 2006 predated the lodging of her application under the Convention by more than six months.
The only domestic decision that had been taken less than six months before the lodging of the application was the one by the Attorney-General dated 29 December 2006. However, as can be seen from that decision, the Attorney-General quoted a Supreme Court ruling from 2001, according to which a victim of a criminal offence had no standing under Icelandic law to claim compensation from the State in respect of acts or omissions by the prosecution in a criminal investigation, the latter being vested with full independence in such matters. The applicant does not seem to suggest that this was not a correct understanding of Icelandic law as applicable at the material time. The decision on her compensation claim did not therefore result from the use of an effective remedy and could therefore not be taken into account in the calculation of the six-month time-limit.
Against this background, it appears that none of the decisions referred to by the applicant could revive the running of the six-month time-limit which started in August 2003.
It follows that the application must be rejected as being inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza Registrar President