European Court of Human Rights

Resolution CM/ResDH(2011)3¹

Execution of the judgment of the European Court of Human Rights

M.C. against Bulgaria

(Application No. 39272/98, judgment of 4 December 2003, final on 4 March 2004)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the failure by the respondent state to fulfil its positive obligation effectively to prosecute any non-consensual sexual act, even in the absence of physical resistance by the victim (violations of Article 3 and 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)3

Information about the measures to comply with the judgment in the case of

M.C. against Bulgaria

Introductory case summary

In this case the Court found that the respondent state has violated its positive obligations under Articles 3 and 8 to apply effectively a criminal-law system punishing all forms of rape and sexual abuse, even in the absence of physical resistance by the victim.

The Court found that the authorities’ approach was too restrictive in that their enquiry into the alleged rape of the applicant in 1995 placed too much emphasis on the absence of direct evidence of rape – such as marks of violence – whereas it should have focused on the absence of consent.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

The applicant’s lawyer informed the Committee of Ministers that his client did not wish to have the domestic proceedings in her case reopened. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The judgment was published on the internet site of the Ministry of Justice www.mjeli.government.bghttp://www.justice.government.bg/new/Default.aspx and also in the second issue of the new quarterly journal European Law and Integration, which is published by the Ministry of Justice in 1000 copies and distributed to magistrates and academics. The text of the judgment, with comments, has also been published in the Bulletin of the Ministry of Justice which is widely disseminated to representatives of the judiciary.

The Legislation Council at the Ministry of Justice delivered a report, according to which it would not be necessary to modify the Criminal Code in execution of this judgment, since the expected results could be reached by drawing up instructions for investigatory bodies. Following this conclusion, in 2005 the National Investigation Office prepared and broadly disseminated methodological instructions on the investigation of rape to all regional investigating services. Furthermore, a circular letter specifying the concrete obligations for investigating authorities in such cases was also issued on 16/10/ 2007 by the Director of the National Police in the Ministry of Interior and addressed to the directors of all police services throughout the country. The letter indicated that evidence concerning the psychological state of victims of rape should be collected, in particular when they are minors. The full text of the judgment of the European Court in Bulgarian was also sent to the investigating bodies competent to investigate such cases.

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction and that the general measures adopted will prevent similar violations and that Bulgaria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.